IN THE ARMED FORCES TRIBUNAL, REGIONAL BENCH, GUWAHATI
O.A. No. 09 OF 2011
P R E S E N T
HON’BLE MR. JUSTICE H.N.SARMA (Retd.), Member(J)
HON’BLE CMDE MOHAN PHADKE (Retd.), Member (A)
Sqn.Ldr Jyoti Kumar Dhan (26060-K)
(MS-14331-M) Med of Headquarters
Eastern Air Command, Indian Air Force
C/O. 99 APO.
Appellant
Mr. Dr.G.Lal
Legal practitioner for
Appellant
- Versus -
1. The Union of India,
through its Secretary, Ministry of Defence,
South Block, New Delhi-110001.
2. Director General Armed Forces Medical
Services, Ministry of Defence,’M’ Block
New Delhi-110001.
3. Air Officer-In-Charge of Personnel (AOP)
Air Headquarters ( Vayu Bhawan)
Pin 936171 C/O. 56 A.P.O.
4. Director General Medical Services (AIR)
Air Headquarters, R.K.Puram,
New Delhi-110066.
5. Senior Officer-in-Charge of Administration (SOA)
Headquarters Eastern Air Command
PIN 936174,.C/O.99 A.P.O.
… Respondents.
Mr.C. Barua,
CGSC
Legal practitioner for
Respondent (s)
Date of Hearing : 16.02.2012
2
Date of Judgment & Order: 26.04.2012
JUDGMENT & ORDER
(HN Sarma, J)
This is the third round of approach by the appellant before this Tribunal
praying for ventilation of his grievances for not granting him second extension of
service up to 14 years by way of extension of his Short Service Commission in the rank
of Sqn.Ldr, in the Indian Air Force.
2. We have heard Dr. G. Lal, learned counsel appearing for the appellant and Mr.
C. Barua, learned CGSC of the respondents.
3. The projected case of the appellant inter-alia is that upon due selection in a
competitive test and becoming qualified he was granted Short Service Commission (for
short SSC) in the Indian Air Force on 9.1.2001 in the rank of Flt Lieutenant in Medical
Branch. As per the prevailing rules, the initial engagement of the appellant was for a
period of 5 years which is further extendable for another period of 5 years. In
consideration of the satisfactory service rendered by the appellant and upon
completion of his initial period of 5 years, the service of the appellant was extended
for another period of 5 years vide order dtd. 9.1.2006. The appellant successfully
completed the extended period of service also. Meanwhile the Central Government
formulated and adopted a policy to allow total tenure of Short Service Commission in
respect of AMC, AD Corps and MNS from 10 years to 14 years as reflected in the
communication dtd. 2.11.07 issued by the respondent No. 1 to all the three Chiefs of
Defence Services. The appellant being eligible to continue his service up to 14 years by
further extension made an application on 17.6.2010 for the second extension. The said
application of the appellant was duly recommended and forwarded by the concerned
Commanding Officer of his Unit. It is noteworthy to state herein that while the
appellant was continuing his service he was informed by a letter dated 2.8.2006 that
as per the information of the Air Force Medical Board, he has been diagnosed as
suffering from ‘Takayasu’s Arteritis’ and he was placed in medical category A4G2(P)
w.e.f 2.3.2004 i.e. during the initial period of his service. The disease having no
impact on the service required to be rendered by the appellant, he was granted the
first extension of service on 9.1.2006, although during this period also the appellant
was suffering from the said disease. It is not in dispute that for the purpose of granting
extension of service of an SCC officer from 5 years to 10 years, the criteria and
guidelines have been reflected in the letter dated 3.1.2005 issued by the Director
General of Air Force Medical Services (in short DGAFMS). As per the said guidelines,
the existing policy of extension was modified to a certain extent and in so far as the
medical fitness is concerned, officers should be as per the revised criteria, “In medical
3
category SHAPE-1 which replaced earlier criteria viz Medical category SHAPE-1 should
be in acceptable medical category except in ‘S’ factor (should be S1).”
3.1 The policy to extend the tenure of a SCC Officer of the Air Force Medical
Services from 10 years to 14 years was adopted by the Govt of India, Ministry of
Defence vide Notification No. 4(3) 2007/D(Medical) dated 2.11.07 and was
communicated to DGAFMS as well as the three related Chiefs of the Army, Navy and
Air Force with copy to other authorities by the Govt of India. At Para 7 of the order, it
is specifically stated that the order issued with the concurrence of Min of Def (Fin)
vide ID No. 716/PA dated 2.11.2007.
3.2 Consequent to the adoption of the aforesaid policy decision for further extension
of the services of SCC Officers up to 14 years, a detailed guideline was also issued vide
Letter No. Air HQ/C 98807/4/PO-5 dated 7.11.07. It is pertinent to note herein that
the appellant continued to remain in the same medical category of A4G2(P) for one
year as reflected from the proceedings of the Medical Board dated 24.4.2010.
4. Towards the end of completion of ten years of service, the appellant made
necessary application for his second extension up to 14 years vide application dated
12.6.2010 in terms of the policy and guidelines issued by the respondents and the said
prayer of the appellant was duly recommended and forwarded by the concerned
commanding officer to the higher authorities for necessary consideration. But without
intimating anything to the appellant in this regard an order was issued by Air
Headquarters, New Delhi on 04th Jan 2011 informing that the approval is given for
release of appellant from service w.e.f. 9.1.2011 as he was not granted extension of
service for failing to meet the eligibility criteria for grant of such extension, without
disclosing as to in which respect the appellant was deficient. The said order was
challenged before this Tribunal in OA No. 6/2011 which was disposed of on 01.03.2011
allowing the appellant to file appropriate application/complaint in terms of Sec. 27 of
the Armed Forces Act before the respondent No. 1 allowing him to raise all the
grounds in support of his prayer of extension enclosing therewith necessary documents
and till disposal of the appeal status-quo in regards to the service of the appellant
till then prevailing was allowed to be continued.
4.1 Thereafter, the appellant submitted his appeal on 8.3.2011 in compliance with
the order of the Tribunal before respondent No. 1, which was, however,
rejected/dismissed vide order dated 27.4.2011 by the Under Secretary to the Govt of
India and resultantly the appellant was released from his service with immediate
effect vide order dated 9.5.2011.
4
4.2 The aforesaid order dated 9.5.2011 was again challenged before this Tribunal by
filing OA No. 5/2011.Upon considering the relevant pleadings as well as the
submissions made on behalf of both the parties, the said appeal was allowed on
30.6.2011 and the impugned orders dated 27.4.2011 and 4.1.2011, modification on
12.5.2011 including all other consequential orders were set aside and allowed the
appellant to continue in his service primarily on the ground that the impugned order
has not disclosed any reason and did not address the points so raised by the appellant
in his appeal. The matter was remanded back to the respondent authority for passing
an appropriate speaking order keeping in mind the discussions made in the order
addressing the points raised by the appellant.
5. Thereafter, the respondent authorities vide impugned order dated 12.8.2011
intimated the appellant that his appeal was examined by the respondents and was
disposed of vide order No. 15/52/2011-D(Medical) dated 9.8.2011 which is reproduced
in the said communication dated 12.8.2011. The aforesaid order rejecting the appeal
of the appellant has again been challenged in the present appeal.
6. In support of the appeal, Dr Lal, learned counsel for the appellant has
submitted that the respondent while rejecting this appeal fell into obvious error by
not adhering to the true scope and spirit of Para 5.4.14 and Appendix-B as reflected in
the Manual of Medical Examinations and Medical Boards (4th Edition) which has already
been interpreted and considered its applicability by the Tribunal in its earlier
Judgment rendered in OA No. 5/2011. It has been further contended that although the
appellant was categorized in the same medical category, as he is in the present, at
the time he was granted the first extension, there cannot ensue any different
consequences for the same medical categorization while his consideration for second
extension came up and accordingly the stand of the respondent in rejecting his prayer
for second extension is contrary to its earlier stand. It is also contended that the
medical category of A4G2(P) with 20% disability is not attracted as per Para 1(d)(iii) of
the revised category issued from the Office of Director General of Armed Forces
Medical Services (in short ‘DGAFMS’) Ministry of Defence vide order dated 3.1.2005
and the appellant having categorized in SHAPE-1, the employability restrictions
reflected in Clauses contained therein are not attracted at all and respondents have
committed grave error in refusing to grant extension to the appellant. The categorical
submission made by Dr. Lal is that the appellant having categorized as A4G2(P) with
20% disability which is equivalent to SHAPE-IB in Army, S-2A1/ S-3A1 in Navy cannot be
refused extension on the ground of being low medical category as per the policy
adopted by the respondents authority as reflected in Communication dated 3.1.2005
that the finding in the impugned order that the appellant should have been
categorized as SHAPE-2 goes against the opinion of the Medical Board and is wholly
5
without jurisdiction in as much as it is only the Medical Board who is competent to
categorize a person medically and not the administrative authority.
6.1 The respondents by filing a counter affidavit contested the stand of the
appellant. It is contended on behalf of the respondents that the appellant was placed
in low medical category with disability and he does not meet the criteria laid down in
the letter No. 3569/DGAFMS.DG-1B dated 03.01.2005 wherein it is provided that only
low medical category officers due to war causalities are to be granted extension
provided they are in S-1 medical category. The respondents further contended that
DGAFMS being the cadre controlling Officer, letter/instruction issued by the Air HQ
regarding grant of further extension of SSC Officer is not applicable. Mr. N.Deka,
learned CGSC further submitted that the appellant is not entitled to base his claim on
the guidelines contained in Manual of Medical Examinations and Medical Boards which
are published under the authority of the Chief of the Air Staff and DGAFMS being
Cadre Controlling Authority, its decision in terms of Army Instruction 75/78 would be
applicable; and finally it is contended by Mr Deka that the case of the appellant was
duly considered by the respondent authority while disposed of his statutory appeal and
the grounds of rejection of his prayer have been categorically mentioned in the
impugned order dated 12.8.2011 and it is done in accordance with the provisions of
law and he prays for dismissal of the appeal.
7. We have considered the submissions made at the Bar. We have also perused the
impugned order, pleadings of the parties as well as the relevant
orders/guidelines/policy which are placed before us.
8. The main issue that calls for consideration in this appeal is as to whether the
respondent authorities in passing the impugned order have correctly held that the
appellant is not entitled to get further extension of his service within the ambit of
law, he having been categorized as A4G2(P) with 20% disability equivalent to SHAPE-
1B of the Army and as to whether the guidelines issued by the Air HQ in the Manual of
Medical Examinations and Medical Boards under the Authority of the Chief of the Air
Staff is applicable to the appellant for the purpose of consideration of his further
extension up to 14 years.
9. Be it noted herein that findings on most of the arguments advanced by the
respondents particularly relating to the non-applicability of the policy/guidelines
issued by the Air HQ are covered by our earlier Judgment dated 30.6.2011. In our
earlier Judgment passed in OA No. 5/2011, we have categorically held at Para 13, 14,
15 & 16 as follows-
6
“13. The Army Instructions 75, on which Mr. Deka has placed strong
reliance, regulates the terms and conditions of service of the Officers
granted Short Service Commission in Army Medical Corps. As per the said
instructions, the Commission is granted for a period of five years in the first
instance and can be extended further for such period as the DGAFMS may
decide subject to condition that the total SSC service of the Officer does
not exceed ten years or beyond the age of 55 years.
14. There is no dispute that as per the said Army Instructions, which
was incorporated on 04.11.1978, the terms of Short Service Commission for
five years, is extendable for another five years on being decided by the
DGAFMS. The criteria for such extension of service have been formulated in
the policy issued on 03.01.2005 revising the earlier policy. As per the
revised policy dated 03.01.2005 for granting extension to Short Service
Commissioned Officers, the criteria has been amended with a view to
improve screening process and as per the revised criteria officers should
fall within the medical category SHAPE 1. The extension of total tenure of
Short Service Commission service up to 14 years have been made by the
Central Government as reflected in the communication dated 02.11.2007
and this decision of the Central Government was communicated to all the
Chiefs of the three defence wings as well as to the three DGAFMS. The
extension of service up to 14 years, as decided by the Central Government
will certainly override the provisions of Army Instruction 75 formulated in
1978. Again, as submitted by Mr. Deka, if the said circular is excluded from
operation in respect of Air Force Medical Staff while applying in respect of
Amy and Naval staff, it will be highly discriminatory and would be an
antithesis to the principles and philosophy of equality clause laid down
under Article 14 of the Constitution of India. The further stand of the
Respondents that the DGAFMS being the cadre controlling authority, only
the circular/guidelines issued by the DGAFMS would be applicable and the
decision of Central Government dated 02.11.2007 extending the services of
SSC officers up to 14 years would not be applicable to the petitioner is
equally fallacious, inasmuch as, the policy decision/ guidelines issued by
the Central Government stands at the top and applicable to all SSC officers.
So far as the criteria applicable for granting extension, if we go back
to the policy letter dated 03.11.2005, it would be seen that in respect of
medical category an officer should be of medical category SHAPE-1. How
SHAPE-1 is to be interpreted in respect of an officer serving in the Air
Force, has been laid down in the Manual of Medical Examinations and
Medical Boards (4th Edition: September 2010) at Clause 5.4.14. For our
ready reference, Clause 5.4.14 is quoted below:-
7
“5.4.14. Whenever Air Force officers are reviewed or opined upon
by an AMC officer, other than Air Force Medical Officers, the
medical category given will be in SHAPE factor. Medical boards on
these officers should take into consideration the guidelines given by
the AMC specialist but should independently decide about the Air
category, which need not necessarily be based on the
recommendations of the Army/Navy specialist, and award an
appropriate Air Force medical category. For guidance of Air Force
Medical Officers, the equivalent of Army and Navy medical
categories are given in Appendix B to this chapter. These guidelines
are not sacrosanct and the accorded category should match the
employability restrictions.
Appendix B, referred to above, is also quoted below for ready
reference:
Appendix-B
(Refers to para 5.4.14)
EQUATION OF MEDICAL CATEGORIES
ARMY, NAVY AND AIR FORCE
1. “SHAPE” system classifying functional capacity mainly relates to
the G factor of Air Force Medical Category. Therefore, as a general
guide, the following are to be considered equivalent in the system of
medical categorization in Army, Navy and Air Force.
Air Force Medical Classifications and Their Equivalent in
Army/Navy (Aircrew/Ground Duty Officers and PBOR)
Air Force medical classifications and their equivalent in
Army/Navy are as under:-
AIR FORCE ARMY NAVY
Ground Aerial
(a) A4G1 A1G1 SHAPE-1A S1A1/S3A1
(b) A4G2 A2/A3G2 SHAPE-1B S2A1/S3A1
(c) A4G3 SHAPE-2 S3A2
(d) A4G4 SHAPE-3 S3A3
(e) AtGt SHAPE-4 S4A4
(f) ApGp SHAPE-5 S5A5
2. However, while converting medical category recommended
on the basis of ‘SHAPE’ classification to Air Force equivalent,
Medical Boards are to carefully evaluate the disabilities in terms of
8
Appendix A of this chapter and provisions of Section VI. The aerial
category should be decided independent of advice rendered by
specialists medical officers.
3. From 01 Dec 2003, SHAPE-1 has been re-defined as SHAPE-1A
which will be equivalent to A1/G1 and SHAPE-1B which will be
equivalent to A2 or A3/G2. “
15. The appellant before us has been placed under medical category
A4G2(P). From the above provisions relating to the equation of medical
categorization of Army, Navy and Air Force staff it is found that the
petitioner, who was categorized as A4G2 (P) would fall within SHAPE-1(B).
Thus, the appellant falls within the required revised medical criteria in
terms of the communication dated 03.01.2005. This view is further fortified
from the Air HQ Human Policy adopted on 07.11.2007 providing guidelines
for extension of service of Short Service Commissioned Officers. Further
details of medical category and implementation, restriction on all officers,
cadres, airmen or crew etc. are reflected in the Manual of Medical
Examination and Examination IAP 4303 (September 2010) at Appendix “A”
that in respect of officer who is categorized “A 4” his functional capacity
impaired to the extent that it interferes with flying duties as Air Crew, but
does not interfere with flying as a passenger. Officers on ground duties
branches possess full functional capacity not interfering with flying as a
passenger and such officer are unfit to fly as an air crew, but fit to fly as a
passenger. So far medical categorization G-2 is concerned, such officers are
capable of enduring physical and mental stress at a standard slightly lower
than G 1 and free from active disease, may have minor defects which do
not restrict employment or result in functional restrictions. So far
employability is concerned they are fit for ground duties, but slightly below
G-1 standard in any part of the world.
16. However, it is contended on behalf of the Respondents that the
extension of the service of the appellant was not granted in view of
restrictions contained in the Army Instruction 75 of 1978. The Respondents,
though at para-40 of their counter have admitted that on earlier occasion
the appellant was considered for extension of service after completion of
his first contractual period of five years and was granted extension for five
years with effect from 09.01.2006, but at paragraph-41 have casually stated
that the appellant was granted extension for five years erroneously by some
inadvertent omission which was not interfered with and he was allowed to
complete the term. But nothing has been stated as to when the alleged
9
“inadvertent omission” was detected or in what manner it occurred or as to
why it was not set at right. Had some inadvertent omission in fact been
taken place, it was the bounden duty of the respondents to rectify the
defect. But that was not done, which is indicative of the fact that the
appellant was granted extension in terms of the existing policy which he
was entitled under the law and the contention that his service was
extended erroneously appears to be only an afterthought.”
10. As none of the parties have challenged the Judgment and order dated
30.6.2011, it has attained its finality. Accordingly, in view of our earlier decision, the
respondent authorities ought to have considered the case of the appellant in terms of
the aforesaid decision, but while rejecting the statutory appeal of the appellant, they
have not at all considered the decision which was earlier arrived at by the Tribunal.
That apart, at Para 5 of the order passed by the respondent No. 1, it has been held
that the appellant would in fact be categorized as P(2) which is absolutely without
jurisdiction in as much as such categorization can be made only by a competent
Medical Board and not by an administrative authority like respondent No. 1. The said
finding in the impugned order is without jurisdiction and cannot be allowed to sustain.
Further the guidelines as contained in Appendix-B in terms of Clause 5.4.14 as
appearing in the Manual of Medical Examination and Medical Board were issued only to
follow the same by the appropriate authority but not to disobey. The guidelines issued
by the respondents which are the professed norms for the respondents in such matters
are applicable to the respondents as well and they are also required to adhere to
those norms whereas the respondents have attempted to give a total ho-bye to those
regulations on the plea that the said guidelines are not applicable, being issued by AIR
Headquarter.
11. According to the respondents as the appellant did not fulfill the eligibility
criteria of not being in SHAPE-1, he was not granted further extension for a further
term of four years. The criteria for extension of SSC officers is laid down in the Order
of the DGAFMS dated 03.01.2005.
11.1 According to Clause (d) acceptable medical category for such extension should
be in S-1 i.e. Medical Category SHAPE-1. As per Para 5.4.14 of the Manual “SHAPE”
system classifying functional capacity mainly relate to ‘G’ factor of Air Force Medical
category and A4 has been made equivalent to A2/A3 G2 in Aerial SHAPE-1B in the
Army. As per the said Appendix ‘B’ from 01.12.2003 SHAPE-1 has been re-defined as
SHAPE-1A, which is equivalent to A1 G1 and SHAPE-1B which will be equivalent to A2
or A3/G2.
10
11.2 Thus according to the Army equivalence the medical category of the appellant
A4G2 is equivalent to SHAPE-1B. As per Annexure 21 (Page 120) the employability
restriction is attributed to SHAPE-II which is low medical category, but the appellant is
in SHAPE-1B. As per policy of the GOI dated 07.11.2007, the eligibility criteria for
granting extension, as regards medical category, in respect of ground duties branch
should be A4 G2(P/T) or above (Annexure 5 page 54).
11.3 Appendix drawn up as per Para 5.4.14 of the Manual provides that medical
category of G2 personnel is fit for all ground duties, but slightly below G1 standard in
any part of the world. As per Army Order No. 1/2004 DGAFMS providing detail
instruction for medical classification for serving officers (Page 12, Annexure-20).
Person categorized as SHAPE-1B is fit for all duties anywhere under medical
observation with no employability restriction.
12. From the meticulous examination of the relevant Notification/guidelines and
policy, it is clear that the medical categorization A2G4 (P) (under which the appellant
falls) is equivalent to SHAPE-1B and there is no dispute that it falls within the SHAPE-1
and at any rate not in SHAPE-2. Appendix-B framed in terms of Clause 5.4.14 also does
not disclose that category A2G4 (P) does not fall within the ambit of SHAPE-IB. In the
revised criteria dated 3.1.2005 issued from the Office of the DGAFMS to the 3(three)
Medical Heads of the services also does not disclose that the Category S-1 does not
include S-1B.
13. In fact, as per Clause 3 of Appendix B (Para 5.4.14), SHAPE-1 is re-defined as
SHAPE-1A which will be equivalent to A1/G1-SHAPE and SHAPE-1B which will be
equivalent to A2 or A3/G2.
14. Thus considering from all angles and upon proper interpretation of the
guidelines, we find that the appellant falls within the category of S-1B equivalent to
Army and there is no employability restrictions as can be very well seen from the
policy/guidelines dated 7.11.2007. The said policy decision dated 7.11.07 states that
for granting extension to a SCC Officer, the medical category should be as follows-
8. Medical Category: Medical category required for the purpose
would be as follows:-
(a) Flying Branch A2G2(P/T) or above
(b) Ground Duty Branch A2G2(P/T) or above
(c) Officer on temporary low medical category who in all
likelihood is expected to regain his/her medical category could be
granted two successive ‘Temporary Extensions’ of six months
11
each. In case of failure to regain requisite category, the officer
would have to relinquish further extension of service.
In view of this latest policy decision adopted in 2007, the submission of the
learned counsel for the Respondents that the appellant is not entitled to get extension
as per earlier communication of the DGAFMS dated 30-1-2005 ( Clause d-III) is not
acceptable and the latest policy decision will prevail and shall hold the field.
15. In view of the above discussions, it is found that the respondents misdirected
themselves in passing the impugned orders dated 12.8.2011 and the order dated
9.8.2011 (quoted in order dated 12.8.2011) is not sustainable in law and accordingly
those are set aside and quashed. The respondents are directed to pass appropriate
order granting second extension to the appellant in his service in terms of the existing
policy and such order shall be done within a period of 30 days from the date of receipt
of the copy of this order; till such order is passed, the earlier order of status-quo shall
continue.
16. With the observations and directions made hereinabove, the appeal stands
allowed as indicated above.
17. No costs.
MEMBER (A) MEMBER (J)
12
IN THE ARMED FORCES TRIBUNAL
REGIONAL BENCH, GUWAHATI.
O.A. NO. 09 OF 2011
P R E S E N T
HON’BLE MR. JUSTICE H.N.SARMA, Member (J)
HON’BLE CMDE MOHAN PHADKE (Retd),Member (A)
Ex-Sqn Ldr Jyoti Kumar Dhan
(26060-K)(MS-14331-M)
Med of Headquarters Eastern
Air Command, India Air Force
C/O.99 APO, Permanent Resident
Of Village Kanti, Post Office,
Larta, District Khunti (Jharkhand)
Pin-835209.
……..Appellant/Petitioner
Dr.G.Lal
Legal Practitioner for
Appellant/Petitioner.
-Versus-
1.The Union of India,
through the Secretary,
Ministry of Defence,
Govt. of India, South Block,
New Delhi - 110001.
2. Director General Armed Forces Medical
Services, Ministry of Defence,’M’ Block
New Delhi-110 011.
3.Air Officer in charge of
Personnel (AOP), Air Headquarters
(Vayu Bhawan) Pin 936171
C/O. 56 A.P.O.
13
4. Director General Medical Services (AIR)
Air Headquarters R.K.Puram,
New Delhi- 110066.
14 Senior Officer Incharge
Of Administration (SOA),
Headquarters Eastern Air
Command, Pin 936174
C/O. 99 APO.
…….. Respondents
Mr.C.Baruah CGSC
Legal Practitioner
for Respondents.
Date of Hearing : 16-02-2012
Date of Judgment
& Order : 26-04-2012
JUDGMENT & ORDER
( Cmde Mohan Phadke)
The present Original Application No. 09/2011 was filed by the Ex.Sqn Ldr Jyoti
Kumar Dhan (26060-K) (MS-14331-M) MED of Headquarters Eastern Air Command,
Indian Air Force C/O.99 APO. The petitioner was granted Short Service Commission
(for short SSC) in the Army Medical Corps (AMC) for a term of 5 years in the rank of
Flight Lieutenant w.e.f. 09.01.2001 and was, in due course, promoted to the rank of
Squadron Leader. Whilst holding this rank, he was granted extension of his SSC for a
further term of 5 years w.e.f. 09.01.2006. At the time of his entry into service, the
petitioner was medically fit but on 06.05.2002, he was found to be suffering from
‘AORTA ARTERITIS’ (ICD-177), and placed in Low Medical Category S1H1A1P3 ( T-24) EI
equivalent to A4G4 in the Air Force on 23.08.2003. On further review on 02.08.2004,
his placement in Low Medical Category A4 G4 was made permanent with 15-19%
disability with a direction to review after one year on 02.08.2005. His condition was
subsequently reviewed from time to time and, with the last review being held on
24.04.2010 at HQ EAC (U) Air Force, the said permanent Low Medical Category was
continued with 20% disability on account of ‘TAKAYASU’S ARTERITIS’. Due to his being
permanently placed in Low Medical Category, in which he had continued for about 8
years, the petitioner was not granted further extension of his SSC.
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2. Aggrieved by his non sanction/grant of further extension, Ex.Sqn Ldr Jyoti
Kumar Dhan (26060-K) filed the Original Applications 06/2010, 05/2011 and finally the
instant Original Application.
3. The petitioner’s case, in brief, is that he was eligible for grant of further
extension of his service as would be evident from the fact that he had earlier been
granted first extension of his service despite his having been in the same low medical
category. He had accordingly applied for extension vide his application dated
17.06.2010 (Annexure -7) and this was duly recommended by his Commanding
Officer, the Principal Officer of his Command and the Director General of Medial
Services (AIR) Air Headquarters and forwarded to Respondent No.2. On 04.01.2011,
however, he was ordered by Fax dated 04.01.2011 (Annexure-10) to be released from
service w.e.f. 09.01.2011. The petitioner challenged the aforesaid release order
before this Tribunal vide Original Application No.06/2010. The OA was disposed of
vide order dated 01.03.2011 with a direction to the appellant to exhaust his statutory
remedy under section 27 of the Air Force Act by filing an application before
Respondent No.1 within two weeks and, on such an application being filed,
Respondent No.1 was to dispose of the said application, within a period of three weeks
by passing an appropriate order and till then, the status quo was ordered. The
petitioner accordingly submitted a representation dated 08.03.2011 but this was
rejected by Respondent No.1 vide order dated 27.04.2011 (Annexure-12 ) which was
handed over to the petitioner along with order dated 06.05.2011 of Respondent No.3
and order dated 09.05.2011 of Respondent No.5 (Annexure-12). The petitioner then
filed a further Original Application being OA 05/2011 before this Tribunal for
challenging this action. The aforesaid OA was disposed of by this Tribunal vide order
dated 30.06.2011 on the ground that the respondents have mechanically rejected the
prayer of the appellant without due application of mind. The respondents were
accordingly directed to dispose of the application dated 8.3.2011 filed by the
appellant afresh in terms of the order dated 1.3.2011 passed in OA 6/2010 keeping in
mind the discussions in the aforesaid Judgment and Order and to pass a speaking
order. Respondents were also accordingly directed to allow the petitioner to rejoin his
duty and to pay necessary salary etc. to him.
4. The appeal preferred by the petitioner in the matter was decided by
Respondent No.1 vide order dated 09.08.2011 (Annexure -1 of the affidavit in
opposition). Pursuant thereto, Respondent No.2 ordered the release of the petitioner
vide letter dated 12.08.2011 (Annexure-18) and he was subsequently released by
Respondent No.5 vide his letter dated 17.08.2011 (Annexure-19). Aggrieved, the
petitioner filed the instant OA claiming his release to be arbitrary, discriminatory,
whimsical, unfair, unjust and illegal.
15
5. In furtherance of his plea that he was eligible for the grant of extension to the
SSC, the petitioner has essentially contended that as per Director General of Armed
Forces Medical Services (for short DGAFMS) order dated 03.01.2005 (Annexure-2), the
eligibility criteria was revised to Medical Category SHAPE-1 instead of “should be in-
acceptable medical Category except in ‘S’ factor (should be S1)”. The petitioner
further claims that as per Annexure-9 Appendix- B, his Medical Category viz A4 G2 was
equivalent to Medical Category SHAPE- 1B. He, being in Medical Category SHAPE-1,
was thus eligible. The petitioner further refers to Annexure-2 which was supplied to
him in response to his RTI request and wherein his Medical Category A4 G2 was shown
to be equivalent to SHAPE-1B in the Army. The petitioner has also referred to AIR
Headquarters, Human Resources Policy at Annexure-5 to contend that as per Para 8(b)
of this policy, the prescribed Medical Category for the purposes of eligibility was
A2 G2 (P/T) or above for the Ground Duty. The petitioner thus claims that he was
eligible as per this policy.
6. Respondents have in response contended that the applicant who was granted
short service commission in the Army Medical Core was governed by Army Instruction
(AI) 75/78 as granted from time to time. His cadre controlling authority was DGAFMS
who had been vested with delegated administrative power in respect of medical
personnel vide Sl.7 of Appendix –II Govt. of India, Ministry of Defence letter No. dated
29.11.2006 (Annexure-R/2) as well as Para 4 of Army Instruction 75/78 ( Annexure-
R/3) . That being so, the regulation laid down under Defence Services Regulations and
Policy letters issued by the Office of the DGAFMS are equally applicable to Medical
Officers of the three Services. Provisions of Army Instruction 75/78 as amended from
time to time do not allow an Officer in Permanent Low Medical Category to be granted
extension of service and, therefore, the OA is liable to be dismissed on this ground
alone. The applicant in this case was diagnosed to be suffering from ‘AORTO
ARTERITIS’( ICD-177) at Air Force Station Biohta on 06 May 2003 ( within 02 years 05
months of commencement of his Short Service Commission) and was placed in Low
Medical Category w.e.f. 25.6.2003. His category was reviewed form time to time
resulting in his being placed in Low Medical Category A4G2 (P) with 15-19 % disability.
Subsequently, on 24.4.2010, the Medical Board placed him in Permanent Low Medical
Category A4 G2 (P) and also granted him disability of 20% as a result of which he
cannot be deemed to be fit for military duty and be equivalent to Shape -1 as claimed
by him. Respondents have also contended that just because the applicant was granted
extension of service in the year 2005, it would not be correct to say that he should be
granted extension even though it is against the policy. This would, in fact, amount to
16
perpetuating an error. Respondents have strongly contended that as the Medical Board
had recommended the applicant with 20% disability w.e.f. 4.8.2005 in Medical
Category A4G2 (P), he cannot be equated with Medical Category SHAPE -1B as Army
Classification SHAPE- 1B denotes a temporary Category under which officers are
observed without medication for a period of one year and then either upgraded to
SHAPE-1 or downgraded to SHAPE-2 or below as the case may be. The first extension
that was granted to the applicant was the result of an inadvertent error which was
duly corrected whilst considering and refusing the second extension for a period of 4
years. The grant of extension as a result of an inadvertent error, can neither be
quoted as precedent nor confer any right on the applicant for the second extension. In
their subsequent rejoinder -affidavit dated 3.2.2012 , the respondents have once again
reiterated their earlier stand that the disease with permanent law Medical Category
with disability of 20% can in no way be compared to either SHAPE-1B or SHAPE-1.
Further, the applicant was not granted extension as he did not fulfill the criteria laid
down in Govt. Policy letter dated 3.01.2005 as per which the ‘Officers in Permanent
Low Medical Category will not be granted extension’. By virtue of the appellant being
placed in permanent Low Medical Category A4G2 (P) with 20% disability he cannot be
deemed to be fit for military duties and be equivalent to SHAPE 1 which is the
category required for grant of extension.
7. We have considered the submissions made at the Bar. We have also perused
the impugned order, pleadings of the parties as well as the relevant
orders/guidelines/policy which are placed before us.
8. The main issue that arises for consideration in this appeal is whether the
respondent authorities in passing the impugned order (Annexure-18) have correctly
held that the appellant is not entitled to get further extension of his service within the
ambit of law.
9. In considering this issue, we need to take note of the fact that the appellant
is an Army Medical Corps (AMC) Officer who is governed by the provisions of Army
Instruction (AI) 75/78 as amended from time to time and read with existing
policies/SOPs laid down by MOD/DGAFMSfor grant of extension to SSC Officers. The
Cadre Controlling authority for the AMC Officers is DGAFMS vide Govt. Of India,
Ministry of Defence Order dated 29.11.2006 (Annexure-R/2) as well as Para 4 of Army
Instruction 75/78 (Annexure-R/3). Further that the latest policy directive on the
question of grant of extension of service is contained in the DGAFMS, Ministry of
Defence order dated 3.1.2005 (Annexure-2) which clearly specifies that the Officers in
Permanent Low Medical Category will not be granted extension of service.
17
9.1. In view of the fact that DGAFMS is the cadre controlling authority of all AMC
Officers, it naturally and logically follows that all promotions, extension of service,
inter service transfers and in fact all career enhancement activities will be governed
by the DGAFMS orders. Once this position is accepted, all that remains with the
Service Headquarters is routine administrative control and disciplinary matters. In the
light of facts as discussed above, administrative guidelines that are issued by Service
Headquarters are only for guidance and application within the said service. Such
orders can under no circumstances control the career related matters – such as
promotions, extension etc. - of AMC officers. When viewed in this light , the orders of
Service Headquarters as referred to and relied upon by the appellant are rendered
inapplicable and ineffective in their application to the appellant’s case as these orders
cannot override/supersede the Govt. orders viz. AI 75/78 as amended and
DGAFMS/MOD orders dated 03.02.2005(Annexure-2). This Tribunal had earlier
disposed of OA vide order dated 01.03.2011 with a direction to the appellant to
exhaust his statutory remedy under section 27 of the Air Force Act by filing an
application before Respondent No.1 within two weeks and, on such an application
being filed, Respondent No.1 was to dispose of the said application, within a period of
three weeks by passing an appropriate order and till then, the status quo was ordered.
Similarly, OA 05/2011 was disposed of by this Tribunal vide order dated 30.06.2011 on
the ground that the respondents had mechanically rejected the prayer of the
appellant without due application of mind. The respondents were accordingly
directed to dispose of the application dated 8.3.2011 filed by the appellant afresh in
terms of the order dated 1.3.2011 passed in OA 6/2010 keeping in mind the
discussions in the aforesaid Judgment and Order and to pass a speaking order. This
was done vide the impugned order.
10. With reference to the present OA, it may be stated that the appellant’s
representation dated 8.3.2011 was rejected by the Govt of India, Ministry of Defence
vide their order No. 15 (15)/2011/D (Medical) dated 27.4.2011 (Annexure 12) on the
ground that his request was in contravention of the provision of Army Instruction
75/78 and therefore, non-grant of extension by the DGAFMS to the officer on account
of his failure to meet the specified medical criteria for grant of extension in the
service vide Army Instruction 75/78 was justified and hence no injustice has been done
to him. This order was, however, set aside as aforesaid vide judgment and order
dated 30.6.2011 of this Tribunal on the ground that the respondents had mechanically
rejected the prayer of the appellant without due application of mind. Respondents
were accordingly directed to dispose of the appeal dated 8.3.2011 filed by the
appellant afresh in terms of the order dated 1.3.2011 passed in OA 6/2010 keeping in
mind the discussion made in the aforesaid judgment and order and to pass a speaking
order.
18
11. The impugned order dated 12.8.2011 (Annexure-18) reiterates the fact that the
officer is an AMC officer to whom Army Instruction 75/78 as amended from time to
time applies. The order further states the officer is presently in low medical
classification A4G2 (Permanent) with 20% disability for the disease “Takayasu’s
Arteritis”. Further that the grant of extension is subject to the terms and conditions of
existing policy which clearly debars the grant of such extension to officers in
permanent low medical category with 20% disability vide Medical Board proceeding
dated 25.4.2010. The Government order further states in Para 5 that the contention
that medical category A4G2 (of the applicant) amounts to SHAPE-IB in view of the
provision of Para 5.4.14 of the Appendix-B of Manual of Medical Examinations and
Medical Boards (4th Edition, Sept/2010), is ill sustained as a person diagnosed to be
suffering from the disease “Takayasu’s Arteritis” cannot come under category SHAPE-
1B as he would, in fact, be categorized as P2 because such equivalence of medical
standards was merely a comparative yardstick for guidance of Air Force Medical
Officers. The impugned order thus justifies the non-grant of extension of SSC to the
appellant as he failed to meet the specific medical criteria.
12. The appellant had in this case, contended that his medical category A4G2(P)
was equivalent to the medical category SHAPE-1B as per the orders concerning
equation of medical categories of Army, Navy and Air Force (Annexure 9). He further
contends that as per Air HQ, Human Resources Policy (Annexure 5), the medical
category required for ground duty branch officer was A2G2 (P/T) or above and
therefore, he was entitled to extension of service. The appellant then refers to
DGAFMS Order at Annexure-2 which lays down the revised criteria for ‘grant of
extension to SSC officers’ and refers to Para 1(d)(i) which describes medical category
SHAPE-1 as the criteria for selection. The officer, however, fails to refer to Clause (iii)
of Sub Para. (d), which reads “Officers in permanent low medical category will not be
granted extension”. This proviso clearly debars an officer in permanent low medical
category from being granted extension of service. Further the rejoinder dated
3.2.2012 filed by the respondents repeatedly clarifies the position in this regard to say
that a person in permanent low medical category cannot come in category SHAPE-1B
or SHAPE-1. In this context, reference is drawn to statements in Paras 12, 14, 15 and
21 of the said rejoinder. In Para 12, the respondents have submitted, “a disease with a
permanent category, moreover, with a disability of 20% can in no way be comparable
to either SHAPE-1B/SHAPE-1 as the relevant Army order is explicit of the same.
Therefore, it is submitted that the applicant was not granted extension on the grounds
that he is in permanent low medical classification with disability and therefore, he
does not meet the criteria laid down under the policy letter No. 3569/DGAFMS.DG-
1B(i) dated 3 Jan 2005, wherein only in case of low medical category officers due to
19
war casualties are to be granted extension, provided they are in S-1 medical category.
Furthermore, the extant policy also specifically mentions that officers in permanent
low medical category will not be granted extension.” Para 14 of the said rejoinder
further states “the terms and conditions of service of medical and dental officers of
AMC and ADC are governed at all times by those approved by the MoD/DGAFMS and
may be at variance with those for the rest of the Armed Forces in their respective
services as Army, Navy or Air Force.”
13. The position that finally emerges is that the latest order on the subject viz
Office of DGAFMS, Ministry of Defence Order No. 3569/DGAFMS/DG-1B(I) dated
3.1.2005 (Annexure-2) which lays down the criteria for grant of extension to SSC
Officers of AMC very clearly debars officers in permanent low medical category from
grant of extension of service. Even if it is assumed for the sake of discussion that
Service Headquarters orders as relied upon contain anything that is contrary to
Government Instruction such orders will, to the extent that they are contrary, become
invalid. In this view, AI 75/78 and Annexure -2 orders being Govt. orders/Instructions
will prevail. This being a Govt order, will prevail over the orders issued by AIR HQ
whether it be Annexure-5 (AIR HQ orders on Human Resources Policy, Extension to SSC
Officers) or Annexure- 9 which lays down equation of medical categories in Army, Navy
and Air Force. It is also relevant to refer to Appendix-E of Army Order 1/04 which has
been cited to show that category SHAPE-1B implies “Fit for all duties everywhere
under medical observation and has no employability restrictions.”, can again not
supersede the Govt instruction as in Annexure-2 or the basic order as applicable to
AMC Officers viz Army Instruction 75/78, as this order also falls in the category of the
order issued by the service headquarters.
14. in the light of above discussion, the appellant is considered ineligible for grant
of extension of Short Service Commission. The impugned order is accordingly upheld.
15. The petition is accordingly dismissed as being devoid of merit.
16. In the facts and circumstances of the case, there will be no order as to costs.
-
MEMBER (A) MEMBER (J)
20
IN THE ARMED FORCES TRIBUNAL
(REGIONAL BENCH) GUWAHATI
OA 09 OF 2011
PRESENT
Hon’ble Mr. Justice Raghunath Ray, Member (Judicial)
(As Third Member Bench)
Ex-Sqn Ldr. Jyoti Kumar Dhan (26060-K) (MS 14331-M) Med
Headquarters Eastern Air command, Indian air Force C/o 99 APO
Permanent resident of Vill. Kanti, PO Larta, Dist. Khunti
Jharkhand, PIN 835209.
……. Applicant
Dr.G.Lal,Advocate
Mrs N.Das,Advocate
Mr.U.Sarma,Advocate
Legal Practitioner for Applicant.
-VS-
1. Union of India through the Secretary, M/o Defence, South Block, New
Delhi-110 001
2. Director General Armed Forces Medical Services, M/o Defence.
‘M” Block, New Delhi-110 001
3. Air Officer-in-charge of Personnel (AOP), Air Headquarters
(Vayu Bhawan) PIN 936171 C/o 56 APO
4. Director General Medical Services (Air) Air Headquarters, R.K.Puram
New Delhi-110066
5. Senior Officer In-Charge of Administration (SOA), Head Quarters,
Air Command, PIN 936174, C/o 99 APO.
…… Respondents
Mr.C..Baruah,CGSC
21
Legal Practitioner for Respondents.
Date of Hearing : 08.03.2013&12.03.2013
Date of Judgment & Order : 14.03.2013
JUDGMENT AND ORDER
Backdrop :
The instant OA was heard by the Armed Forces Tribunal, Regional Bench at
Guwahati. Since the learned Members of the Bench differed in opinion, they
formulated three points of difference and made a reference to the Hon’ble
Chairperson vide order dated 26.4.2012. The Member(Judicial), Kolkata Regional
Bench has, thereafter, been nominated as a Third Member to hear the matter in terms
of provision of Sec. 28 of the AFT Act, 2007.
Facts:
2. Factual matrix leading to filing of the instant OA may be capsulized as under:
3. The applicant was inducted in the rank of Flight Lieutenant in the Medical
Branch of Indian Air Force, as a Short Service Commissioned officer on 9th January 2001
initially for five years extendable for another term of five years.
4. As a Medical Officer in the Indian Air Force in the rank of Flt. Lt., he rendered
his duties and responsibilities with utmost sincerity, efficiency, dedication and
devotion to the full satisfaction of the concerned authorities. He had, in fact an
unblemished service records to his credit. At any rate, as ill luck would have it, on
6.5.03 he was diagnosed with TAKAYASUS ARTERITIS and was placed in medical
category known as “A4G2(P)” with 15-19% disability with effect from 2.8.04. However,
despite such diagnosis, he continued to perform his duty as usual with same degree of
efficiency and proficiency and his performance was not in any way affected because of
detection of such ailment: More so, he was not subjected to any medication for the
same.
5. Since his initial term of appointment was going to expire on 8.1.06, the
applicant applied for extension of service on 5.12.05 for a further period of five years.
After due consideration of his health status as also newly detected ailment etc, he was
22
granted further extension for second term of five years w.e.f. 09.01.2006 to
08.01.2012.
6. In the meantime because of formulation of a new policy by the Govt. of India,
Ministry of Defence, New Delhi, the tenure of SSC officers of Armed Force Medical
Services (AFMS for short) became extendable from 10 to 14 years vide letter bearing
No. 4(3)/2007/D(Medical) dated 2.11.2007. All the Chiefs of three Defence services as
also Director General Armed Forces Medical Services (DGAFMS for short) were also duly
communicated about such change in the Govt. policy.
7. Banking upon the afore-mentioned policy letter, the applicant submitted his
application through proper channel on 17.06.10 urging the respondents to extend his
service for another term of four years. Such prayer was duly recommended and
forwarded by the Commanding Officer of the applicant, i.e. the Principal Medical
Officer of his command, i.e. Eastern Air Command (EAC in short) as also the Director
General Medical Services (Air) at Air Headquarters (respondent No. 4) to the office of
respondent No. 2. His prayer for extension of service for a period of further four years
was not taken into consideration despite recommendation by the appropriate
authorities. The competent authority, however, accorded approval for his release
from service w.e.f. 09.01.2011 (FN) on the ground of non-fulfillment of eligibility
criteria required for grant of such extension. The respondents’ refusal to accede to
the applicant’s prayer for further extension of service gave rise to three rounds of
litigation:
First Round
8. The applicant had to rush to the Regional Bench of AFT at Guwahati
challenging the validity/legality of the release order impugned. After hearing both
sides, the Tribunal admitted his OA No. 6 of 2010 and passed an interim order of status
quo in respect of the service of the applicant till 04.02.11 vide order dt. 07.01.11.
Such interim order was further extended till 4.3.11. However, since the applicant had
not exhausted statutory remedy provided u/s 27 of The AIR FORCE ACT, 1950, (
hereinafter referred to as the said Act) OA 6 of 2010 was disposed of on 01.03.11
affording an opportunity to the applicant to file appropriate application seeking
redress in terms of Sec. 27 of saod Act before the Respondent Authorities within a
period of two weeks from the date of the order dated 01.03.11. The respondents were
also directed to dispose of such application within three weeks thereafter by passing
necessary order. The order of status quo in respect of service of the applicant dated
07.01.2011 was to continue pending disposal of the appeal in question by the
respondents.
23
9. An application u/s 27 of the Air Force Act was preferred as per direction of the
Tribunal before the Ministry of Defence against the release order in question. The said
appeal was, however, disposed of by the respondent No. 1 vide order dt. 27.04.11 and
the applicant was informed that he was being struck off from the strength (SOS for
short) w.e.f. 09.05.11 (FN). His prayer for some time to approach the Tribunal for
appropriate reliefs was also refused by the Respondent Authorities.
Second Round
10. In such circumstances, the applicant had to prefer OA 05 of 2011 for the
second time before the Tribunal with a prayer for setting aside the impugned orders
dt. 27.04.11, 04.01.11 and the modified order dt. 12.05.11. The said OA was allowed
on contest on 30.06.2011.All the three orders impugned were set aside and the
matter was remanded back with a specific direction upon the Defence secretary,
Union of India, respondent No. 1 to dispose of the appeal dated 08.03.2011 filed by
the applicant afresh in terms of the order dated 01.03.2011 passed in OA 06 of 2010 by
passing a speaking order in the light of discussions made in the judgement passed in
OA 05/2011 preferably within a period of two months from the date of receipt of a
copy of the Judgment and order The Respondents were asked to allow the petitioner
to continue in his service in the meantime.
11. The applicant was permitted to join his duty w.e.f. 01.07.11 (FN) accordingly
and was also paid salaries and other allowances admissible to him for the months of
May and June 2011 in compliance with the aforementioned judgment and order passed
in OA 05 of 2011.
12. The Statutory Complaint dated 08.03.2011 u/s 27 of the Air Force Act, 1950,
was re-examined by the Govt. of India, Ministry of Defence and was disposed of vide
their order dated 9th August, 2011 with the finding that the authority is justified in
refusing to grant an extension for another term of four years since he is in permanent
Low Medical Category with 20% disability vide the Medical Board Proceedings dated
24th April, 2010 (Annexure-18). Accordingly the applicant was served with the release
order dated 16th August 2011 intimating him about his release from service w.e.f.
forenoon of 17th August 2011 (Annexure- 19).
Third Round :
Applicant’s contentions
24
13. Being aggrieved and dissatisfied with the aforementioned order impugned, the
applicant has preferred this OA being OA No. 09 of 2011 as the third round of
litigation.
14. The main grievance of the petitioner as ventilated in the petition is that he has
been arbitrarily and whimsically denied second extension for a term of four years. He
was diagnosed with TAKAYASUS ARTERITIS and placed in medical category known as
A4G2 (P) with 15-19% disability with effect from 02.08.2004 (annexure-1) which was
subsequently rounded up to 20% vide Medical Board Proceedings dated 06.08.2005. On
consideration of such medical status he was granted further extension for a term of 05
years more with effect from 09.01.2006 to 08.01.2011. According to him, even though
the disease was stable and there was no change in his clinical parameters and he was
declared to be placed in the same medical category specified as A4G2(P) with 20%
disability by the Medical Board proceedings dated 24.04.2010, his prayer for second
extension for a term of four years was rejected by the respondent authorities on the
plea of being placed in Permanent Low Medical Category.
15. It is also specifically pleaded by him that further extension has been refused to
him even without specifying his exact deficiencies in meeting the eligibility criteria for
grant of such extension for a period of further four years. That apart, the policy
decision adopted by the Central Govt. as communicated vide letter dated 03.01.2005
(Annexure-2) coupled with subsequently revised policy decision as communicated
under letter dated 07.11.2007 (Annexue-5), in fact, made him eligible to secure
further extension. The guidelines, as envisaged in clause 5.4.14 of the Guidelines
dated. 7.11.07 together with Appendix B of the Manual of Medical Examination and
Medical Board ( in short said Manual) published under the authority of Chief of Air
Staff (Annexure-8), have not strictly been followed by the authorities while
considering his prayer for further extension even though those policy guidelines as also
the policy decision were very much applicable to him. Further, the statutory
Authorities have also not considered his prayer made in statutory appeal dated. 8th
March 2011 in the light of observations made in the Tribunal’s order dated. 30.6.12 in
its proper perspective.
Respondents’ stance
16. The averments made in the petition have, however, been strongly controverted
by the respondents in their affidavit-in-opposition. It has been contended inter alia
therein that the applicant was always under low medical category for the last eight
years for the principal disability of TAKAYASUS ARTERITIS. His disability, in fact,
continued to remain and the percentage of disability awarded was 20% in the
25
permanent low medical category for the disability of TAKAYASUS ARTERITIS. Since the
applicant failed to fulfill the eligibility criteria of not being in SHAPE1 for grant of
further extension, he was refused such extension for another term of four years.
17. It is further contended therein that the Armed Forces Medical Service (in short
AFMS) is a Tri-Services organization wherein officers are first commissioned in AMC
under a common Army Instruction(in short AI) No. 75/78 and subsequently seconded
into Army, Navy and Air Force. That being so, the DGAFMS is the cadre controlling
authority and has been vested with delegated administrative power in respect of
medical personnel (annexure-R2). In such a situation, the rules and regulations laid
down under Defence Service Regulations ( in short DSR) and the policy letter issued by
the Director General Armed Forces Medical Service are squarely applicable to the
Medical Officers of the three Services. It is also contended that the rules and
regulations pertaining to medical category and fitness etc. are governed under a
common platform for AFMS officers, who by virtue of being in Tri-Service set up, are
liable to be transferred from one Service to the other based on organizational/service
requirement. The Medical Officers from each service of AFMS are governed by the
respective regulations of Army/Navy/Air Force for discipline purposes but
administrative issues like posting, continuation in service, the medical fitness criteria
etc. are dealt with uniformly. Since the applicant is governed under AI No. 75/78 and
amendments thereto, he cannot be granted extension inasmuch as AI No. 75/78 does
not permit a permanent low category officer to get such extension.
18. The medical categorization rules in Army are equally applicable to the same
class of officers performing same duties and there cannot be two different yardsticks
for the same disability. Further the AIR HQ letter on Human Resource Policy vide letter
dated 07 Nov. 2007 (Annexure-5) is applicable to AE Branch of Air Force and not for
AMC Officers. It has, therefore, been averred that a person with infirmity of recorded
disability cannot be considered to be medically fit. True, first extension was granted
to the applicant from 5 to 10 years in the year 2005 after introduction of new policy
vide letter dated. 03.01.05 inadvertently by mistake. Such mistake cannot be allowed
to continue any further. According to the respondents, since the applicant had been
placed in permanent low medical category of A4GP2 by the medical board with
disability of 20%, the same cannot be equated with SHAPE1-B of Army or to be fit for
particular duties equivalent to SHAPE1. The present application is, therefore, devoid
of any merit and as such the reliefs, as prayed for, cannot be granted to him. The
petition is liable to be dismissed accordingly.
26
19. After a full-fledged hearing before the regular Division Bench of AFT, Guwahati
Regional Bench, two different judgments in the present case were pronounced and in
view of divergence of opinion, the following points were formulated as under :-
1) Whether while granting second extension of service to the appellant,
the policy decision appearing in Air HQ/C-98807/4/PO-5 dated
7.11.2007 will be applicable or whether the earlier policy decision
issued by MOD/DGAFMS dated 3.1.2005 will still hold the field ?
2) Whether the Appendix B drawn under Para 5.4.14 (Annexure-A9) of the
Manual of Medical Examination, having disclosed that the Medical
Category A4G2 is equivalent to SHAPE-1(B) of the Army, appellant can
be denied extension contending that the said categorization is not
applicable to the appellant ?
3) Whether the impugned order dated 12.8.2011 contained in the order
dated 9.8.2011 dismissing the statutory appeal of the appellant is
sustainable in law?
20. Argument on behalf of the applicant.
Appearing on behalf of the applicant, Dr.G.Lal, learned Advocate has
referred to Columns 21,22 and 24 of the Medical Board Proceedings dated 02.08.2004
and submitted that as per Air Force norms the applicant was medically categorized as
A4G2(P) with 15-19 % disability and as per medical opinion of the Board there was no
specific restriction regarding employment as mentioned in column 24 of the said
proceedings. Similarly, in the changed format of the Medial Board proceedings in
column 21 it is recorded that he had no restriction for employment and his disability
was rounded up to 20% .He was categorized in the same medical category i.e. A4G2
(P) accordingly. There was no adverse remark against him at any point of time
throughout his service career. According to him “Employment Restriction” is the main
criterion on which a medical category is based on. The medical categories i.e. SHAPE 2
and below in Army and A4G3 and below in Air Force have some kind of employability
restriction in its mandatory nature as explained in Annexure-8.
21. Dr.Lal has next argued in support of his petition that as per revised criteria in
the Policy letter dated 03.02.2005 (Annexdure-2), the acceptable medical category is
SHAPE 1 for grant of extension to SSC officers. Such revised category came into force
with the approval of the DGAFMS, Respondent No.2. At this stage, he makes an
endeavor to throw light on the composition and organization of the Armed Forces
Medical Services to highlight the hierarchical position of the AFMS. It is submitted by
him that the senior most in the medical services of the Armed Forces is designated as
Director General of Armed Forces Medical Services and that his orders are applicable
27
to all three medical services of the Army, Navy and Air Force. Similarly, each of the
Medical Services is headed by the Director General of Medical Services (DGMS) who is
the Medical Advisor of the Chief of the Staff of their respective service and responsible
for the day to day administration and proper functioning of the service under them.
Whereas, the Director General of Armed Forces Medial Services as Head of the Armed
Forces Medical Service is responsible to the Govt. and is also the Medical Adviser to
the Ministry of Defence and functions directly under the Ministry of Defence. He has
thus outlined inter service organization of Armed Forces Medical Service for
appreciation of the service requirement of each of the medical Services of the Army,
Navy and Air Force of AFMS by the Bench in its proper perspective.
22. It is further argued by him that for the revised category as laid under the
Defence Ministry communication dated 03.01.2005, which contains under Clause
1(d)(iii) that Officers in Permanent Low Medical Category is not to be granted
extension does not indeed include medical category A4G2(P) as Permanent Low
Medical category. As per ‘personal occurrence Report’ of the applicant he was granted
first extension when he was categorized as A4G2 (P). According to him, in view of the
partial modification of the provisions contained in AI 75/78, service of SSC Officers has
been made extendable up to 14 years subject to their fulfilling all laid down eligibility
criteria. It is, therefore, submitted by him that the applicant’s prayer for second
extension being duly recommended by the Commanding Officer as well as Principal
Medical Officers because of his placement in medical category as A4G2 with 20%
disability ought to have been accepted. As per Annexure-9 which introduced SHAPE
system classifying functional capacity mainly relates to G factor of Air Force Medical
Category. It also speaks about equation of Medical categories of Army, Navy and Air
Force. In column 1(b) of Appendix B of Air Force Medical Classification A4G2 has been
shown as equivalent to SHAPE1B in the Army. He has also drawn this Court’s attention
to Para 3 of the said table of Equation of Medical Categories of Army, Navy and Air
Force which provides that SHAPE 1 has been redefined as SHAPE 1A which will be
equivalent to A1/G1 and SHAPE 1B which will be equivalent to A2 or A3/G2.
23. It is, therefore, contended by Dr.Lal that since the respondents have not
denied applicability of the said manual to the applicant in the affidavit- in -opposition,
the Court is to accept such position that the applicant’s medical category being A4G2
can be equated with SHAPE 1B of the Army and he cannot be downgraded to SHAPE 2
for which one can be placed in Low Medical Category. It is also forcefully argued by
him that by no stretch of imagination it can be said that DGAFMS is not in the know of
the medical category SHAPE1B which is being looked upon as equivalent to Air Force
Medical category A4G2. According to him, the concept of division of SHAPE as per Para
3 of the Appendix-B of the said Manual published under the authority of Chief of the
28
Air Staff. Existence of such manual has not been disputed by the respondents at any
point of time. There is nothing on record to indicate that SHAPE1B can be equated to
SHAPE 2 being permanently Low Medial Category. It is strenuously argued by him that
SHAPE1B with certain amount of disability cannot be downgraded to SHAPE 2 which is
undoubtedly Low Medical Category having necessary employment restriction.
According to him, it is an admitted position that the applicant was never downgraded
to SHAPE 2 by the Medical Board in their medical proceedings.
24. Dr.Lal proceeds to argue further that even though SHAPE 1 has been
redefined w.e..f 01.12.2003 vide Para 3 of Annexure-9 and the revised criteria for
extension to SSC Officer (Annexure-2) is dated 02.01.2005 being issued after the gap of
more than two years, there is no stipulation in Annexure-2, which has been relied
upon by the Respondents, to the effect that SSC Officers having medical category
A4G4(P) with 20% disability which is equivalent to SHAPE1B shall not be eligible for
extension of their tenure. On the other hand, the schedule of information (Annexure-
21) sought for under Para 1(a) of I.T. query substantiates the petitioner’s contention
that SHAPE2 is a Low Medical Category and it would necessarily imply employability
restriction. It is, therefore, argued by him that, in fact, this is the Low Medical
Category contemplated for not granting extension of service to the SSC Officers vide
sub Para 3 (d) of para 1 of revised criteria dated 03.01.2005 (Annexure-2). And as per
Annexure 9 SHAPE 2 of Army is equivalent to A4G3 of Air Force vide Para 1(c) of
Annexure -9. In such view of the matter Air Headquarters policy letter is very much
applicable to the case of the applicant and denial thereof will be highly arbitrary and
discriminatory and it would jeopardize the service interest of the applicant who has all
along been working in the Medical Service of the Air Force. According to him, even
though the respondents have not denied the applicability of the said Manual punished
under the authority of Chief of Air Staff, they have sought to set up a plea of non
applicability of the guidelines and instructions issued by the Air Headquarters with the
sole purpose of restricting the applicant’s chance for further extension of service.
Such stand of the respondents appears to be self contradictory. Since both the
guidelines and instructions issued by the Air Headquarters as also the said Manual were
published under the authority of Chief of the Air Staff. He, therefore, urges this
Bench to opine that Air Headquarters letter (Annexure-5) is applicable to all the Air
Force personnel including members of the Air Force Medical Service.
25. Dr.Lal has, thereafter, taken this Bench through Paras 14.15,16 and 17 of the
Judgment and Order dated 30.06.2011 passed in OA No.05/2011 and argued that
certain questions of law have been settled and decided therein. Therefore, there is no
scope for the respondents to re-agitate those questions of law already settled by the
Hon’ble Members of the Division Bench per curium. It is submitted by him that the
29
policy decision of the Central Govt. dated 02.11.2007 and Appendix- B under clause
5.4.14 of the said Manual as also the guidelines of the Air Headquarters dated
07.11.2007 were held to be applicable to the applicant. He further argued that since
the applicant was able to make out a case of interference with the impugned order in
OA 05 of 2011 the same was set aside and quashed with a direction to the respondents
to dispose of the appeal dated 08.03.2005 filed by the applicant afresh in terms of the
order dated 01.03.2011 passed in OA 06/2010 keeping in mind the directions made in
the Judgment and order dated 30.06.2011. He has also relied upon the observation of
the Division Bench that as none of the parties challenged the Judgment and Order
dated 30.06.2011 it has attained finality. In support of his aforesaid contention Dr.Lal
has referred to as many as seven rulings of the Hon’ble Apex Court reported in (1)
(1976) 4 SCC 124(Manganese Ore (India)Ltd. Appellant Vs The Regional Assistant
Commissioner of Sales Tax,J abalpur Respondents ; (2) (2011)8 SCC 161( Indian
Council for Enviro-Legal Action petitioner Vs. Union of India and others respondents ;
(3) (2002)4 SCC 638 ; (4) (2011)12 SCC 615( Fida Husain and others appellants Vs.
Moradabad Development Authority and another respondents ; (5) (2011) 2 SCC 601 (
Medley Pharmaceuticals Limited appellant Vs. Commissioner of Central Excise and
Customs, Deman , respondents; (6) (2002)4 SCC 388(Rupa Ashok Hura petitioner
Vs.Ashok Hurra and another Respondents and (7) (2002) 4 SCC 234( Chandra Prakash
and others petitioner Vs. State of UP and another respondents. Relying upon those
citations it is further argued by him that a decision on the dispute between the parties
decided vide Paras 13-17 of the Judgment and order dated 30.6.2011 would bind the
Court in subsequent cases and its earlier decision should be followed as a binding
precedent.
26. In the concluding part it is vehemently argued by Dr. Lal that even though the
applicant is now not in service, it is absolutely within the discretion of the Court of
law to do dispensation of justice to the aggrieved party who is deprived of his
legal/fundamental right arbitrarily and illegally. According to him, to prevent
miscarriage of justice to the aggrieved party because of abuse of process of law by the
respondents, the Court of law cannot be a mute spectator. Rather the Court would
readily respond to the cause of justice and protect the right and interest of the
aggrieved party. It is further submitted by him that the applicant was, in fact, thrown
out from the service within a few minutes after disposal of the statutory complaint, on
17.8.2011 at around 10.30 AM when he had reported for his duties on that day. He was
even denied any reasonable opportunity to approach the Tribunal. It is, therefore,
finally submitted by him that this Bench is to offer its opinion exercising its discretion
judiciously in consonance with the canon of natural justice. According to him, the
order impugned is liable to be set aside accordingly.
30
27. Per Contra
It is argued by Mr,C.Boruah, learned CGSC at the outset that the applicant is
admittedly no longer in service and he has accordingly described himself in the Cause
Title of the petition as Ex Sq. Leader. It is ,therefore, contended by him that in view
of such discontinuance in the medical service of the Armed Forces his case for
further extension in such service is neither warranted nor legally permitted. Fortified
with the rulings reported in (2009) 16 SCC 385 (Rajiv Kumar and others appellants Vs.
Director of Health Services, Kerala and ors. Respondents. and (2006) 5 SCC 153
(D.C.Agarwal (dead) by Lrs. Appellants Vs. State Bank of India and another,
Respondents), it is forcefully argued by him that no legal is vested in the employee to
demand an extension and further that on the expiry of a fixed tenure appointment,
there would be no relationship of master and servant thereafter until the relationship
is continued by fresh letter of appointment or by intervention of any Court’s order.
28. Further, by referring to the applicant’s prayer dated 17.06.2010 wherein he
has expressed his willingness to serve another term and exercised his option for
extension of service (Annexure-7), it is submitted by Mr.Boruah that the applicant
himself has admitted unequivocally therein that he is in Low Medical Category. It is,
therefore, vehemently argued by him that in view of such admission he is unfit for
further extension in terms of Clause 1(d)(iii) of the policy letter dated 03.01.2005
issued by the office of DGFMS (Annexure-2). According to him, the instant application
can, therefore, be dismissed solely on these two grounds. He, thereafter, proceeds
to argue that the respondent No.2 is quite justified in rejecting the prayer for
extension inasmuch as it was not legally tenable in view of applicant’s utter failure to
satisfy the revised criteria including medial category SHAPE1 as laid down in the
revised criteria (Amnexue-2). In support of his contention he has referred to the
decision (unreported) of the Principal Bench of Armed Forces Tribunal, New Delhi
dated March 10, 2011 in the case of Major Vivakananda Choudhury, petitioner Vs.
Union of India, respondents (in OA 09 of 2011) wherein it is held that the petitioner
being a Short Service Commissioned Officer, he is entitled to get further extension
subject to his being medically in SHAPE1. Therefore, the Hon’ble Principal Bench was
pleased to opine that there is no question of granting extension to the petitioner as
per his service condition. Since the present petitioner and Maj Vivakananda Choudhury
petitioner in the case before the Hon’ble Principal Bench is similarly situated,
applying the ratio of the said decision the applicant’s prayer for further extension
should also be dismissed.
29. He has further drawn the attention of this Bench to Para 4 of AI 75/78 to
substantiate his case that the petitioner is subjected to Army Act 1950 and DGAFMS is
the authority to decide the question of further extension. In such a view of the
31
matter, the DGAFMS being the cadre controlling authority is vested with the power of
regulating the service conditions of all the medical officers of the AFMS while the
Director General Medial Service (Air) is to look after the day to day routine affairs as
also the disciplinary aspects of the officers of Medical Services (Air) as per Regulations
for the Medical Services of the Armed Forces. It is further pointed out by him that in
the relevant column of the Medical Board Proceedings the Doctor has opined that the
applicant continued to remain in Low Medical Category. According to him, despite
such opinion that applicant signed the Board Proceedings without challenging the
legality/validity of the said medical opinion. He is, therefore, of the view that the
order impugned does not call for any interference by the Tribunal.
30. Discussion/Analysis.
For the sake of convenience in discussion and brevity in treatment, all the
three points as referred to and quoted in Para 19 are taken up together for
consideration and opinion since they are interlinked with each other.
Anxious consideration has been paid to rival submissions advanced by both
sides with reference to plethora of documents (annexure 1 to 21 and R1 to R7)
furnished by the parties coupled with other relevant material facts and circumstances
on record. Medical Broad Proceedings in original was also perused by this Bench on its
production on behalf of the respondents. The original case records pertaining to
disposal of statutory complaint, were however, not produced, although it was called
for.
31. Admittedly, the petitioner was granted Short Service Commission (SSC for
short) in Indian Air Force in the rank of Flight Lieutenant in Medical Branch initially for
a period of five years. It appears that on consideration of satisfactory service rendered
by him, as also medical standard assessed by the appropriate Medical Board, he was
granted 1st extension of service for a further period of five years vide order dated
09.01.2006. Accordingly, he continued in the Medical Branch of Air Force till
09.11.2011, being declared fit by the Medical Board as per yardstick formulated by
DGAFMS. However, in the meantime, a new policy for renewal of extended service in
case of S.S.C Officers of Armed Forces Medical Services ( in short AFMS) from ten years
to fourteen years. vide letter dated 02.11.2007( annexure-4). The applicant
considered himself to be eligible for further extension of four years since it is an
admitted position that while he was in medical category A4G2P with 20% disability, he
was granted extension for another five years with effect from 09/01.2006. As his
medical category remained the same, he applied for another extension for a period of
four years as per revised policy of the Govt.
32
32. Mr.Baruah’s argument that the applicant’s prayer for further extension does
not deserve any consideration because of his discontinuance in the medical service of
the Air Force is of no avail for the simple reason that the Hon’ble Apex Court in the
decision cited on behalf of the respondents has ruled that even if such an employee is
no longer in service during pendency of the proceedings he can be protected by
issuance of fresh letter of appointment by the authorities or by intervention of Court’s
order. On the question of employees’ legal right to claim extension it can be said that
it is to be judged on the facts and circumstances as would be unfolded in a particular
case. The petitioner’s admission in his prayer for extension is of no consequence since
the claim of extension is to be considered in terms of the rules and regulation as
prescribed by the Govt. and other appropriate authorities. In this case it may be
pointed out that even though in the said application for further extension, the
applicant has sought for such extension as per provision of AIR Headquarters HRD
issued by AIR Headquarters C 98804/04/05 dated 7.11.2007, the respondents have
never controverted such statements. At any rate, the applicant’s medical category is
to be determined by the medical opinion of the Board and his purported admission
does not carry any weight in this regard.
33. Mr.Baruah, learned CGSC has sought to rely upon an unreported decision of
the Hon’ble Principle Bench of the Tribunal in the case of Vivekananda Choudhury
(supra). The aforesaid decision has been perused by this Bench. It appears that the
said ruling is easily distinguishable since the facts and circumstances of the case are
not identical to the present case. The applicant in the present case has been placed in
the medical category A4G2 which is equivalent to SHAPE1B in Army. The petitioner in
OA 09/2011 was placed in A4G3 i.e. P2 having employment restriction and was also on
medication as submitted on behalf of the applicant. In the instant case, it may be
pointed out that, the applicant is not on medication and also having no employment
restriction. It is reiterated on behalf of the applicant that any person having no
employment restriction can never be placed in Low Medical Category because Low
Medical Category has much employment restriction. Having considered the submissions
of both sides, it appears that the Judgment of the Principal Bench as cited by
Mr.Baruah is neither relevant nor applicable to the facts and circumstances of the
present case.
34. The applicant’s claim for 2nd extension for a term of four years is based on
Defence Ministry’s policy letter dated. 02.11.07 (annxure-4) which is set out as under
:-
“ No. 4(3)/2007/D(Medical)
Govt. of India, Ministry of
Defence New Delhi, the 2nd
33
November 2007
Subject : Extension of tenure of short Service Commissioned Officers of
the Armed Forces Medial Services (AFMS) from 10 years to 14
years
Sir,
In partial modification of the provision contained in AI 75/78,
AI 15/79 and AI 17/96 as amended, I am directed to convey the
sanction of the President for extension of total tenure of Short
Service commission (SSC) in respect of AMC, AD Corps and MNS
from 10 years to 14 years in the following manner :-
Source of Candidates
Initial period
First extension
Second extension
Total period of service
AMC (From AFMC)
07 07 NA 14
AMC (From Civil)
05 05 04 14
MNS (From Schools of Nursing)
05 05 04 14
MNS (From Civil)
05 05 04 14
AD Corps (From Civil)
05 05 04 14
2. Extension of service upto 14 years will also be applicable to serving Short
Service Commissioned Officers (SSCOs) including those officers currently on
terminal leave, subject to their fulfilling all the laid down eligibility
criteria.
3. The SSC Officers granted extension shall be eligible for time scale
promotions as applicable to Permanent Commissioned (PC) officers of
respective cadre/service i.e. AMC, AMC (NT), AD Corps and MNS to the rank
of Capt. Major and Lt. Col (& equivalent. ) (Emphasis supplied)
4. AMC/SSC officers will include …..
5. These orders will come into effect from the date of issue of the letter.
6. Amendment to the relevant Army Instructions will be issued in due course.
7. This issues with the concurrence of Min of Def (Fin) vide their ID No. 716/PA
dated 2.11.2007.
Yours faithfully,
Sd/ R.c.Raturi
Dy. Secretary to Govt. of India:”
34
35. It is quite evident from the underlined portion of the caption ‘subject’ itself as
also the relevant Sl. No. 1 & 2 of the afore-quoted communication of Ministry of
Defence which was communicated to all the Chiefs of three wings of the Armed Forces
and also the Director General, Armed Forces Medical Service, the cadre controlling
authority of the applicant that such extension of service up to 14 years would be
equally applicable to Short Service Commissioned Officers (SSCOs) of the Armed
Forces Medical Services which consist of the Medical Services of the Army, Navy and
Air Force. In partial modification of provisions contained in AI 75/78, AI 15/79 and AI
17/96 such extension of tenure from 10 years to 14 years was sanctioned subject to
their fulfilling all the laid down eligibility criteria. Further, SSC officers granted
extension shall be eligible for time scale promotions as applicable to permanent
commissioned (PC) officers of respective cadre/service i.e. AMC, AMC(NT) etc. to be
rank of Capt. Major and Lt. Col ( & equivalent). The first term of the applicant was
due to expire on 8.1.12. He was, therefore, entitled to get the benefit of the revised
policy of Govt. of India, as a member of the Armed forces Medical service (for short
AFMAS) subject to his satisfying the laid down eligibility criteria since such revision of
Govt. policy came into effect on and from 2.11.2007 i.e. the date of issuance of the
letter. The respondents’ plea of non-applicability of this changed policy in case of
applicant is not backed by any sufficiently strong cogent ground. Therefore, the
applicant’s right to be considered for further extension of four years on the strength
of the afore-quoted Govt. order cannot be denied. Respondents’ objection on that
score appears to be devoid of any merit.
36. On the question of fulfillment of eligibility criteria norms, the revised criteria
as specified by the office of DGAFMS in the circular dated. 23.01.2005 (Annexure-2) is
now to be examined meticulously for ascertainment of the applicant’s eligibility for
being entitled to second extension as per revised criteria. In this context, it would be
apt to reproduce the revised criteria as under :-
“ OFFICE OF THE DGAFMS
MINISTRY OF DEFENCE
DG-IB(I), ‘M’ BLOCK
NEW DELHI-110 001.
03 Jan 2005
GRANT OF EXTENSION TO SSC OFFICERS
35
1. The present criteria for grant of extension of SSC officers is governed by item
XVII of MSAC meeting held on 25 Apr 1990. with a view to improve the screening
process to retain better officers the present criteria is amended as follows :-
PRESENT CRITERIA REVISED CRITERIA
(a) Officers should have minimum Minimum average of all available
Average of at least 6 in the latest ACRs should be 6. However, in star
Available ACRs qualities rating should be more than 05. Minimum
02 ACRs required.
(b) No adverse remarks in any of the ACR No change
(c) No drop in performance in the latest No change
ACR
(d) should be in acceptable medical
Category except in ‘S’ factor
(should be SI)
(i) Medical category
SHAPE-1
(ii) in case of war casualties Low Medical
category officers will be granted extension
but should be In S-1 Medical category.
(iii)Officers in permanent low Medical
category officers will not be granted
extension.
MOBC COURSE
(I) Should be graded “A’,’B’ or ‘C’ in
MOBC
(II) Officers failed in MOBC course will
not be considered for extension.
(iii) If not done MOBC at the Initial
extension, officer will not be granted
extension. “
2. This has approval of the DGAFMS
Sd/-
(Indulekha Halder)
Dir AFMS(P) for DGAFMS.”
37. These revised criteria were sent to the Director General of three Medical
Services (Army Navy and Air Force). A close scrutiny of the afore-quoted criteria
36
reveals that the criteria evolved in 1990 was amended “with a view to improve the
screening process to retain better officers”. Accordingly, the acceptable medical
category for extension was specified as SHAPE1 while the officers in permanent low
medical category will not be granted extension. In such view of the matter, the core
issue requiring adjudication is whether the applicant is qualified in terms of clause
(1)(d)(i) or disqualified under 1(d)(iii) of the said circular (Annex-2).
38. The aforementioned issue which appears to be the crux of the matter is to be
adjudicated in the light of the opinion of the Medical Board read with medical
categorization through SHAPE system as also the concept of equivalence in the revised
acceptable medical standard of SSC officers envisaged in Annexure-2,4,5,8 and 9 vis-
à-vis their functional employability in respect of medical duties assigned to them.
39. At the outset, reference may be made to para 5.4.1 of Chapter-4 of Manual of
Medical Examination and Medical Boards (4th Edn. September 2010) (in short the said
Manual) wherein it is emphasized that “Medical Boards and categorization must be
done on time and expeditiously with the singular aim of returning an individual to his
work in the minimum of time and with minimum dislocation from his duties/duty
station.”
40. It is further clarified in para 5.4.6 of the said Manual that “while awarding
medical category to AF Medical, Dental and Nursing officers, equivalent medical
category of Army (SHAPE) should also be indicated.” In this context it would be
pertinent to refer to Para 3 of the ‘ FORE-WORD’ of the said Manual which may throw
light on the main objective of formulation of the said Manual.
“ 3. The current edition has been formulated keeping in mind the
unique service requirements of an air warrior in times of war and
peace, the need to harmonize the health status of an air-warrior with
the demands of his/her profession………….” (emphasis supplied),
41. It is, therefore, abundantly clear from the preface of the said Manual itself
that the object of formulation of the said manual is only to meet the unique service
requirements of Air Force officers which include AMC Officers who have been
seconded to Air Force and has been working as a Medical Officer of the Air Force. In
such view of the matter the concept of equivalence of medical category of Army, Air
force and Navy has been introduced w.e.f. 2003 to meet respective service
requirement of each of the medical service. The ends of justice would not be
adequately met if we oversimplify the matter by simply brushing aside the said Manual
by merely saying without any rhyme or reason that the relevant provisions of the said
Manual have no application to the Medical Officers of the Air Force who have been
37
working there being seconded from AMC. The service requirement of the Air Force
Medical Services which is one of the constituents of the Armed Forces Medical Services
cannot thus be ignored on any pretext whatsoever. In course of argument Mr.Baruah,
learned counsel for the respondents has, however, in his usual fairness admitted that
the said Manual has limited application to the case of the applicant only in respect of
awarding medical category to AF Medical, Dental and Nursing Officers in terms of
equivalence of Army (SHAPE) and rest of the provisions of the said Manual cannot be
applied to the applicant’s case. To my mind, such piecemeal acceptance of the
relevant provisions of the said Manual is neither plausible nor acceptable in the facts
and circumstances as unfounded and discussed above in this case. I am, therefore, of
the considered opinion that the said Manual is wholly applicable for arriving at a just
decision in the instant case.
42. As per para 5.4.10 of the said Manual, details of medical categories and
employment restriction of officers, cadets and Airmen aircrew, Airmen and NCs(E)
have been specified in Appendix- A wherefrom the relevant extracts pertaining to the
exact medical category (column-b), functional capacity (column-c) and Employability
(column-d) are reproduced herein below :-
“ APPENDIX-A
MEDICAL CATEGORIES OFFICERS,CADETS AND AIRMEN AIRCREW
Sl. No. Medical
Category
Functional Capacity Employability
(a) (b) (c) (d)
1. A1 -- --
2. A2 - -
3. A3 - -
4. A4 Functional capacity
impaired to the extent
that it interferes with
flying duties as an
aircrew, but does not
interferes with flying
as passengers. Officers
of ground duties
branches possess full
functional capacity or
impaired functional
capacity not
interfering with flying
as a passenger.
Unfit to fly as an aircrew. Fit to fly
as a passenger only.
38
5 At - -
6 Ap - -
7 G1 - -
8 G2 Physical capacity and
stamina slightly less
than GI. Capable of
enduring physical and
mental stress at a
standard slightly lower
than GI. Free from
active disease, may
have minor defects
which do not restrict
employment/ or result
in functional
restriction.
Fit for all ground duties, but
slightly below GI standard, in any
part of the world. In the case of
cadets, officers undergoing
training, ACs, U/T and airmen
undergoing training, fitness to
continue training to be clearly
specified by the board.
9 G3 - -
10 G4 - -
11 Gt - -
12 Gp - -
Explanatory Notes
Note 1. Each Officers and Airmen Aircrew shall be awarded appropriate Aerial (A) and
Ground (G) category. As a rough guide AI/GI means full medical category with fitness
to serve in any part of the world. A2/G2 would be appropriate for cases with mild
disease or disability where there is minimal limitation of function and only requires
periodic observation. Such persons are generally fit to perform duties in any part of
the world. As co pilot only. Similarly, G3 would imply moderate disability fit for
duties not involving severe stress. A4 (for aircrew)/G4/A4G4 would imply severe
disability. Fit for sedentary duties only.”
43. It is mandated accordingly in Note-1 of the explanatory notes thereunder that
“each officers and airmen aircrew shall be awarded appropriate Aerial (A) and Ground
(G) category”. Now adverting to the table under Appendix A it appears that as per the
policy in the Air Force , Medical category of the Officers are to be denoted by A and G
category and not as SHAPE category as is done in the Army. “A” stand for
employability condition in Air and “G” stands for employability in ground duty. The
applicant has medically been categorized as A4G2 which is stated to be equivalent to
SHAPE1B
39
44. It would also be contextually relevant and appropriate to quote Para 5.4.14.
of the said manual as under :
“ 5.4.14. Whenever Air Force officers are reviewed or opined upon by a AMC
officer, other than Air Force Medical Officers, the medical category given will be in
SHAPE factor. Medical boards on these officers should take into consideration the
guidelines given by the AMC specialist but should independently decide about the Air
Category, which need not necessarily be based on the recommendations of the
Army/Navy specialist, and award an approprite4 Air Force medical category. For
guidance of Air Force Medical Officers, the equivalent of Army and Navy medial
categories are given in Appendix B to this chapter. These guidelines are not sacrosanct
and accorded category should match the employability restrictions………………..”.
45 Appendix B referred to in the aforequoted para 5.4.14 reads as under :-
“ APPENDIX –B
1. ‘SHAPE’ system classifying functional capacity mainly relates to the G
factor of air Force Medical category. Therefore, as a general guide, the
following are to be considered equivalent in the system of medical
categorization in Army, Navy and Air Force.” ( emphasis supplied )
Air Force Medical Classifications and their Equivalent in Army/Navy
(Aircrew/Ground duty Officers and PBOR)
Air Force medical classification and their equivalent in Army/Navy are as
under:
AIR FORCE ARMY NAVY
Ground Aerial
(a) A4G1 A1G1 SHAPE-1A S1A1/S3A1
(b) A4G2 A2/A3G2 SHAPE-1B S2A1/S3A1
© A4G3 SHAPE-2 S3A2
(d) A4G4 SHAPE-3 S3A3
(e) AtGt SHAPE-4 S4A4
ApGp SHAPE-5 S5A5
2. However, while converting medical category recommended on the basis
of SHAPE classification to Air Force equivalent, Medical boards are to carefully
evaluate the disabilities in terms of Appendix A of this chapter and provisions
40
of Section VI. The aerial category should be decided independent of advice
rendered by specialist medical officer.
3. From 01 Dec 2003, SHAPE-1 HAS BEEN RE-DEFINED AS shape-1A
which will be equivalent to A1/G1 and Shape-1B which will be equivalent to
A2 or A3/G2. ( emphasis supplied)”
46. Keeping in view Appendix- A under Para 5.4.10 together with Appendix B
under Para 5.4.14 of the said Manual the process of medical categorization / re-
categorization of the applicant by the Medical Board in their proceedings is to be
scrutinized meticulously. It is found at Annexure-1 that his medical category was
shown as A4G3 (T24) w.e.f. 20 Feb 2004 with 5 to 19 % disability. It was, therefore,
opined by the classified specialist (Medicine and Rheumatology) on 3.0.7.2004 that it
was a case of Takayasus Arteritis and medical category was A4G2 (P) with the
recommendation for three monthly review by Rheumatologist. There is, however,
nothing on record to indicate that 3 monthly review was undertaken by a
Rheumatologist. At any rate, the applicant was recommended to continue in A4G2 (P)
with an advice of 3 monthly review. Further Lt. Col. R.Arunachalan, the classified
specialist (Medicine & Rheumatology) also opined that the applicant may be granted
extension of service in existing category vide recommendation dated. 4.8.2005
(Annexure-1A). Said recommendation was approved by the competent authority on
21.11.06 (Annexure-1B). By referring to column No. 24 of the part I of the Medical
Board proceedings (Annexure 1) as also Column No.21 of the revised format of the
Medical Board proceedings (Annexure 1B), it has been rightly been pointed out by
Dr.Lal that the Medical Board have categorically recorded its medical opinion on 2nd
August and 1st Nov.2006 respectively that that there is no specific restriction
regarding employment.
47. Pausing for a moment, it can, therefore, safely be concluded that the first
extension was given to the applicant after due consideration of the recommendation
made by the Medical Board properly constituted by the DGAFMS and it is now
preposterous to suggest before the Bench, after the successful completion of the first
tenure of extension by the applicant as also after the expiry of long five years, in
connection with a judicial proceedings that the grant of extension in favour of the
applicant was a mere inadvertent omission on the part of the competent authority. It
is also significant to note that no whisper was ever made within the four corners of
the affidavit- in- opposition as to at what point of time such inadvertent omission was
detected by whom and further what remedial measures were taken to rectify such a
serious error of judgment in their decision. Was there any lack of transparency in the
decision making process? All such pertinent questions remain unanswered. In the
41
absence of all these relevant particulars, it can easily be inferred that such plea of
mistake has been set up at a belated stage to resist the applicant’s claim of 2nd
extension which is founded on similar acceptable medical category and also on
fulfillment of all other criteria entitling him to such extension. In this connection, it is
worth mentioning that Dr.Lal has invited the attention of the Bench to para 16 of the
Judgment dated 17.6.2011 passed by the Division Bench of the Tribunal (Annexure 13)
wherein it is observed : “the contention that service was erroneously extended appear
to be an afterthought”. Aforementioned observation of the Division Bench thus lends
support to such inference of the Bench on this score.
48. That apart, the applicant’s successful completion of his extended tenure leads
the Bench to conclude that the Medical Board was completely justified in
recommending first extension to the applicant. In fact, the applicant discharged his
duties and responsibilities as a medical officer to IAF efficiently to the entire
satisfaction of concerned authorities during the tenure of his first extension so granted
in his favour by the competent authority. This Bench is, therefore, of the considered
view that, it was neither a bonafide mistake nor an inadvertent omission as pleaded by
the respondents now. Rather, it was a well considered judicious decision on the part
of the respondent authorities based on sound recommendation of the Medical Board.
He was granted first extension for tenure of five years accordingly. In that view of the
matter the applicant cannot be subjected to any discrimination now while considering
his prayer for second extension on the same set of facts and circumstances on any
pretext whatsoever since the Medical Board proceedings reveal that the applicant
continued to remain in the same medical category of A4G2(P) with 20% disability on
20.04.2010 vide Annexure- R5. His medical condition, therefore, remained stable and
there was no deterioration since last examination by the Medical Board on 10.08.2004.
49. Against the background of such factual scenario specially in respect of similar
medical categorization in the year 2010 on the eve of his prayer for second extension,
it can further be concluded that the disease of Takayasus Arteritis had no adverse
impact on the medical service required to be rendered by the applicant. He was
granted first extension of service on 09.01.06 and the same consideration ought to
have played a vital role when the question of 2nd extension in similar circumstances
arose, as there being no material change in his medical category for all these years. It
was within the acceptable medical norms meant for the AIR Force Medical Service.
The competent authority should have granted extension for a period of four years
since the applicant also fulfilled all other eligibility criteria including discharge of his
duties as a Medical Officer of the Air Force satisfactorily. The purported low medical
category for having 20% disability because of the disease of Takayasus Arteritis cannot
be taken into account as convincing ground for refusing second extension whenever
42
there was not even a minor variation in the ground level situation pertaining to the
applicant’s medical category which conforms to the medical standard as per table of
equivalence of medical categories of Army, Navy and Air Force shown at Appendix –B
of the said manual (Annexure-9).
50. Unfortunately, the respondent No. 2 while disposing of the statutory complaint
vide order dated. 11.08.2012 failed to appreciate the true scope and spirit of para
5.4.14 together with Appendix B of the said Manual already considered and relied upon
by the Division Bench of the Tribunal in its earlier judgment and order dated
30.06.2011 in OA 5 of 2011 (Annexure-13). This bench feels constrained to opine that
the respondent No 1 has not taken into consideration the relevant observations made
by the Tribunal in the aforementioned judgment while refusing to grant further
extension. As a matter of fact, the order impugned (Anenxure-18) does not reflect any
deliberation throwing light on the observations made by the Division Bench of the
Tribunal. Even keeping in view Mr,Baruah’s argument that the respondent No.2 is free
to take his own decision independently irrespective of Tribunal’s observations touching
the merit of the case, it can be said that the judicial propriety demands and dictates
that the Respondent No.1 in his quasi judicial capacity should at least take into
consideration the discussions made in the body of the judgment of the Tribunal. In
fact, the order impugned itself has maintained a sturdy silence in this regard. It is to
be borne in mind that the Tribunal in its earlier Judgment dated 30.06.2011 clearly
spells out the infirmities of the earlier orders rejecting applicant’s prayer for further
extension by holding inter alia that the prayer in question was rejected mechanically
without any application of mind. Accordingly, the impugned orders dated 27.04.2011
and 04.01.2011, modified order dated 12.05.2011 and all consequential orders were
set aside and quashed with a specific direction to objectively consider the applicant’s
case for extension up to 14 years and further to pass a speaking order. This Bench is
afraid, the respondents again failed to avoid such shortcomings in the order impugned
(Annexure-18) wherefrom it is evident ex facie that there is no iota of discussions
which would tend to show that respondent No. 1, who was specially directed by the
Division Bench of the Tribunal at Para 17 of page 17 of the Judgment (Annexure -13),
has at least taken note of the observation / discussion made in the body of the said
Judgment, not to speak of consideration of the same therein. It is also not clear to
the Bench from the communication dated 12.08.2011 (Annexsure-18) quoting the
extracts of the impugned order as to whether the statutory complaint of the applicant
was disposed of by the Respondent No.1. Such communication was, however, made by
the Joint Director AFMS (HR) for DGAFMS. Even though the Division Bench in their
Judgment made it clear that “ It shall be the responsibility of the respondent No.1
himself to dispose of the appeal as directed……..” There is nothing on record to
indicate that the Respondent No.1 himself passed the order impugned by making
43
proper application of mind and such rejection of the prayer was not made
mechanically as was done on earlier occasion as observed by the Division Bench in the
aforementioned Judgment.
51. In this context several judgments of the Hon’ble Apex Court cited by Dr.Lal
are required to be considered since relying upon those rulings Dr.Lal has argued by
referring to para 13 to 17 of the Judgment dated 13.6.2011 (Aneexue-13) that those
findings of the Division Bench of the Tribunal are binding upon the Hon’ble Members of
the Tribunal who per curium passed the said Judgment. I have very carefully gone
through the rulings cited by Dr.Lal with reference to argument advanced by Mr.Baruah
to counter such submissions of Dr.Lal. It is argued by Mr.Baruah that this Third Judge
Bench is not bound by those observations of Division Bench of the Tribunal and this
Third Judge Bench has only been called upon to offer its opinion on the questions
formulated by the Division Bench and referred to him for a decision since the Hon’ble
Members of the Division Bench of the Tribunal differed in their opinion. In such view of
the matter, this Third Judge Bench is to give his opinion only on the points formulated
by the Division Bench of the Tribunal independently. Therefore, observations/findings
of the Division Bench have no binding effect upon this Third Judge Bench as the
relevant observations made in the Judgment of the Division Bench cannot be treated
as precedent in the process of formation of opinion in respect of points formulated by
the Division Bench. After taking into consideration the rival submissions advanced by
both sides, I find much substance in the submission of Mr.Baruah and as such,
submission made by Dr.Lal on that score has no relevance.
52. As already discussed earlier, the medical category A4G2(P) with 20%
disability does not attract disqualification in terms of para 1(d)(iii) of the revised
criteria issued from the office of DGAFMS dated. 03.01.2005 (Annexure-2). The
Respondent No.1 has not considered the applicant’s medical categorization in its
proper perspective and has arbitrarily resorted to the disqualifying clause to refuse
applicant’s prayer for further extension. Furthermore, on the issue of acceptable
standard of Medical category it can be said that having categorized as A4G2(P) with
20% disability, which is SHAPE-1B in the Army with corresponding S2A1/S3A1 in the
Navy, he cannot be refused extension on the pretext of being placed in low medical
category since the policy adopted by the respondents authority under communication
dated. 03.01.2005 does not at all support such plea.
53. The finding of the respondents in the impugned order (Annexure-18) that the
applicant should have been categorized as P2 is misconceived for the simple reason
that such finding by the administrative authority goes against the medical opinion and
recommendation of the Medical Board which was recorded after taking into
44
consideration various types of medical examinations of the applicant, deliberation
over the issue as well as the opinion of the classified specialist. It is well settled legal
position that it is only the Medical Board which is competent to categorize a person
medically and not the administrative authority. In other words, the competent
authority in the instant case decided the issue of second extension arbitrarily by
bypassing the medical opinion of the Board which was duly constituted by the
respondent No.2.
54. The plea of the respondents that the DGAFMS being the cadre controlling
authority, instruction issued by the Air HQ regarding grant of further extension is not
applicable, appears to be devoid of any merit. There is no doubt that even though a
medical officer seconded to the Air Force remains in the Army Medical Corps and his
service conditions are also undoubtedly regulated by the DGAFMS being cadre
controlling authority, but the disciplinary affairs and other allied matters including his
performance appraisal as a medical officer attached to the Air Force are looked into
by the Air Force Authority as per the principles enunciated by them. It would be
detrimental to his service interest if an Air Force Medical officer is not given the
benefit of circulars relating to policy matters formulated by Air Force Authority.
Appraisal criteria, medical category and other day- to- day routine matters are
accordingly controlled by DGMS (Air) although formal approval is to be accorded by the
DGAFMS being the cadre controlling authority in some of those matters. But at the
same time, it is to be borne in mind that DGAFMS cannot exercise authority and
discretion in an arbitrary manner by rejecting the recommendation of the Air Force
Medical authorities.
55. In this connection it would be pertinent to refer to the Appendix E of Army
Order No. 1/04/DGMS issued by DGMS(A) dated. 20.05.04 (Annexure-20) wherein
detailed instructions for medical classification of serving officers have been imparted
(for short medical classification). Clause (3) of the said medical classification indicates
that the SHAPE system “ is based on functional capacity of the officer as a whole for
military duties with a view to ensuring that low medical category awarded to an
officer for minor physical defects per se of a particular organ or system does not, by
itself, restrict his/her further employment. Thus, classification done under this system
enables the administrative authorities concerned to assign appropriate
appointments/posts to officers depending on their employment capability.”
56. As per clause (4) of the said Army Order functional capacity for military duties
under each factor will be denoted by numerals 1 to 5 against each code letter
indicating declining functional efficiency. The numerals will be written next to the
code letters SHAPE, except that, where an officer is in Grade one in all the factors, his
45
category will be denoted by writing SHAPE-1 instead of writing S1H1AIPIEI. General
evaluation of these numerals is as under :-
“1A Fit for all duties anywhere
1B Fit for all duties anywhere under medical observations and
has no Employability restrictions. (emphasis supplied).
2. – Fit for all duties but may have limitations as to type of duties and
areas of employability depending on whether the duties involve severe
Stress or demand acuity of hearing/vision of both eyes.
………. …………. ”
57. Turning to the guidelines enumerated in the Air Hqs circular dated.
7.11.07 (annexure-5|) it is found that those are exhaustive in nature and are required
to be followed for granting extension of service to SSC officers working in Medical
Services of Air Force. The specific guideline in respect of medical category is laid
down in clause 8 of the said circular indicating the medical category required in
respect of Flying Branch as also Ground Duty Branch . Clause 8 of the said Circular
dated 07. Nov.2007 (Anneexure-5) reads as under :
Air HQ (VB)
“ AIR HQ/C98807/4/OI-5 PIN 936171
C/o 56 APO
07 Nov 07
AIR HEADQUARTERS HUMAN RESOURCES POLICY
PART I/PO/CM/11/2007 EXTENSION TO SHORT SERVICE COMMISSIONED OFFICERS
INTRODUCTION
……………………………………………………………………………………………
AIM
…………………………………………………………………………………………….
GUIDELINES
..........................................................................................................
......................................
2. Medical Category. Medical category required for the purpose would be as
follows :-
(a) Flying Branch - A2G2(P/T) or above
(b) Ground Duty Branch - A4G2 (P/T) or above
46
(c) Officer on temporary low medical category who in all likelihood is
expected to regain his/her medical category could be granted two successive
‘Temporary Extensions’ of six months each. In case of failure to regain
requisite category, the officer would have to relinquish further extension of
service.
… ….. …….”
“
In concluding portion of the circular the object of the policy has been laid
down as under :
“ ……. The procedures and guidelines, enumerated in this HRP, will
ensure that the most deserving and optimum number of SSC officers are
granted extension of SSC. This will also ensure long-term cadre management of
IAF”
58. The required medical category for the applicant-doctor, who belongs to
Ground Duty Branch of Indian Air Force is, therefore, A4G2(P/T) or above and such
requirement has been satisfied by the applicant as per recommendation of the Medical
Board.
59. The applicability of this circular has been questioned on behalf of the
respondents on the ground that the applicant being a member of the Armed Forces
Medical Service Corps, seconded to Air Force Medical Service is governed by Army
Rules. Before addressing the issue in question Defence Services Regulations For the
Medical Services of the Armed Forces, 2010 (Revised Edition) (approved
amendments/orders up to 01 Jan 2010) (in short said Regulations) are required to be
taken into consideration.
60. There is no doubt that Medical Services in the Armed Forces (Army, Navy and
Air Force) are provided by the Corps of AMC (Army Medical Corps). Regulation 1 of
Chapter I of the said Regulations deals with composition and organization of Armed
Forces Medical Services, Its Director General Medical Services ( Air) ( in short DGMS
(Air)) is responsible for day- to - day administration and proper functioning of the
service. Whereas the Director General, Armed Forces Medical Service is the Medical
Advisor to the Ministry of Defence and is also the Chairman of the Medical Services
Advisory Committee.
61. Regulation 18 of chapter II, Sec. I of the said Regulations indicates that
DGAFMS, as head of Armed Forces Medical Services with status of a PSO will be
responsible to the Government for the overall medical policy, while the director
47
Generals of Medical Services will be the Medical Advisers to their respective chiefs of
Staff and will be responsible for the day to day administration and proper functioning
of the medical services of the Army, Navy and Air Forces. The said regulations have
broadly outlined the role of DGAFMS and three DGMS, Director General (DGDS), and
Additional Director Generals MNS (ADGMNS) and officers delegated with financial
powers. It is crystal clear that the Director General of Medical Services is responsible
for proper functioning of the respective medical service of Army, Navy and Air Forces
while DGAFMS being the cadre controlling authority in respect of Armed Forces
Medical Service officers will regulate their service conditions. The Director General of
each of the Medical Services would, therefore, exercise supervision for proper
functioning of the respective Medical Services of Army, Navy Air Force which are under
their immediate control.
Findings
62. It is, therefore, importantly important to consider the peculiarities of
medical service pertaining to employability criteria in each Force.. In fact, every
service manages its own medical support and the Director General of the Army Medical
Corps being the head of medical service regulates the working condition of all the
three medical services headed by. DGMS. The main purpose of each category of force
is to optimize the medial resources and technical facilities and the overall head of the
Armed Forces Medical service DGAFMS being the cadre controlling authority is to lay
down the policies with regard to all aspects of personnel management including
promotions and other allied matters of SSC officers. All these come within the ambit
and scope of charter of duties of DGAFMS as per Reg. 18 of the said Regulations. These
policies are, however, subject to approval by the Ministry of Defence. It is, therefore,
to be specifically noted here that DGAFMS is to exercise his discretionary power with
abundant care and circumspection. There is no scope for arbitrariness in disposing of
the service matters which are normally routed through respective DG of Medical
Service with suitable recommendations by appropriate Air Force authorities based
upon the opinion of Medical Board specially when the case of extension of service of
SSC Officers comes up before the DGAFMS for judicious consideration.
63. As already analyzed in preceding paragraphs, the policy with regard to
medical standard for being eligible for extension of service for SSC officers has been
laid down in Annexure-2 dated 03.01.2005 issued from the Office of the DGAFMS,
Ministry of Defence. The applicant, though an AMC officer, is in the Air Force and is
thus governed under the Air Force Acts and Rules. That being so, as per extant policy
in the Air Force, medical category of the officers are to be denoted by A and G
category and not as SHAPE as is done in the Army. ‘A’ denotes employability condition
for Air branch officers and G stands for employability for ground level officers. The
48
category of the applicant has been A4G2 as recommended by the medical board which
is said to be equivalent to SHAPE 1B. The applicant’s contention in respect of
equivalence is that SHAPE 1A and SHAPE 1B are the two shades of SHAPE 1. In fact, the
applicant has not been downgraded to SHAPE 2 OR BELOW. In this context, it should be
made clear that his A4G2 category cannot be termed as low medical category by any
stretch of imagination. Rather it should be considered at par with SHAPE 1. It is also
worth mentioning that in the Army P2 is promotable category but in the present case
we are simply concerned with acceptable medical category which makes the applicant
eligible for extension of service as a SSC officer, who is found otherwise eligible and
qualified.
64. It is not disputed that the applicant in the present medical category has been
functioning to the entire satisfaction of the Air Force authorities. His appraisal by
superiors was also found to be adequate and there is no complaint in respect of his
performance on account of his medical category which he is holding at the present
moment. It is, therefore, established and firmly established that at no point of time,
during his extended tenure, he has failed to satisfy other eligibility criteria apart from
holding his acceptable medical category.
65. It is to be borne in mind that the purpose of medical categorization is to
obtain the objective view with regard to officer’s employability in the service.
Employability condition on account of medical conditions would differ from Army to
Air Force. But it is a matter of record that DGAFMS has not laid down any common
medical category for officers of all three services nor it is pragmatic to obtain such
commonality.
66. In the light of foregoing discussions it can safely be concluded that A4G2(P/T)
with 20% disability should be treated at par with SHAPE1B for the purpose of granting
extension to SSC medical officers of the Air Force. True, there are some grey areas in
the table of equivalence itself. There is no doubt that some sort of uniformity in
respect of medical standard as per requirement of each of the medical services under
the control of DGAFMS is required to be introduced in the interest of medical officers
of all the three forces. Such arduous task should invariably be left to the wisdom of
DGAFMS. Be that as it may, the fact remains that in the instant case, the applicant
who happens to be the Medical Officer in the Air Force Medical Services has to
discharge his duties restricted to ground only which appears to be far less rigorous
than that of an Army Officer or Officers of the Air Force performing air duty. Since the
present applicant has satisfied all the other criteria there should not be any cogent
ground to refuse his extension as SSC officer.
49
67. Based upon the important consideration of the relevant fact that the applicant
is all along in the medical category of A4G2 (P) with 20% disability having no
employability restriction equivalent to SHAPE1B of Army, this Bench of the definite
opinion that the applicant is eligible for his second extension of service as prayed for
in his application dated 17.06.2010 (Annexure-7).
Opinion
68. The three points which have been referred to for opinion of the Third
Member and quoted in Para 10 have been discussed and analyzed together in the
foregoing paragraphs with reference to submission of both sides and materials on
record.
69. As a sequel to the above discussion/analysis/findings, this Bench is now to
record its opinion and answer point-wise separately in the manner indicted below:
Point (a) Whether while granting second extension of service to the appellant,
the policy decision appearing in Air HQ/C-98807/4/PO-5 dated 7.11.2007 will
be applicable or whether the earlier policy decision issued by MOD/DGAFMS
dated 3.1.2005 will still hold the field ?
As per foregoing discussion it is opined that while granting the second
extension of service to the appellant, the policy decision appearing in the Air
HQ/C-98807/4/PO-5 dated 7.11.2007 will be applicable and the earlier policy
decision issued by the MOD/DGAFMS dated 03.01.2005 will not hold the field.
This point is answered accordingly.
Point (b) Whether the Appendix B drawn under Para 5.4.14 (Annexure-A9) of
the Manual of Medical Examination, having disclosed that the Medical Category
A4G2 is equivalent to SHAPE-1(B) of the Army, appellant can be denied
extension contending that the said categorization is not applicable to the
appellant ?
In view of the discussions made in preceding paragraphs, I am of the
opinion that the medical category of the appellant is to be treated as SHAPE1B
of the Army and hence, the appellant cannot be denied extension contending
that the said categorization is not applicable to the appellant.
This point is thus answered.
50
Point (c) Whether the impugned order dated 12.8.2011 contained in the order
dated 9.8.2011 dismissing the statutory appeal of the appellant is sustainable
in law ?
Viewed in the light of findings recorded hereinbefore, I am to opine that
the order impugned dated 09.08.2011 dismissing the statutory appeal of the
appellant is not sustainable in law.
This point is answered in the negative.
70. As my opinion has been called for in respect of three points framed by the
Bench, let this opinion be placed before the Bench for an appropriate order in this
regard.
(Justice Raghunath Ray)
MEMBER (J)
51
OA 09/2011
IN THE ARMED FORCES TRIBUNAL, REGIONAL BENCH, GUWAHATI
P R E S E N T
HON’BLE MR. JUSTICE H.N.SARMA (Retd.), Member(J)
HON’BLE CMDE MOHAN PHADKE (Retd.), Member (A)
Sqn.Ldr Jyoti Kumar Dhan (26060-K)
(MS-14331-M) Med of Headquarters
Eastern Air Command, Indian Air Force
C/O. 99 APO.
… Appellant
Mr. Dr.G.Lal
Legal practitioner for Appellant
- Versus -
1. The Union of India,
through its Secretary, Ministry of Defence,
South Block, New Delhi-110001.
2. Director General Armed Forces Medical
Services, Ministry of Defence,’M’ Block
New Delhi-110001.
3. Air Officer-In-Charge of Personnel(AOP)
Air Headquarters( Vayu Bhawan)
Pin 936171 C/O. 56 A.P.O.
4. Director General Medical Services(AIR)
Air Headquarters, R.K.Puram,
New Delhi-110066.
5. Senior Officer-in-Charge of Administration (SOA)
Headquarters Eastern Air Command
PIN 936174,.C/O.99 A.P.O.
… Respondents.
Mr C Barua, CGSC
Legal practitioner
For the respondents.
19.02.2013
A difference of opinion having arisen between two Members while disposing of
the appeal, the matter was referred to the Hon’ble Chairperson under Section 28 of
52
the Armed Forces Tribunal Act. Accordingly, the matter was referred to the Third
Member.
The Hon’ble Third Member, upon hearing the parties, has delivered his
judgment and order on 14.03.2013 allowing the appeal by answering the three
questions referred to him. In such a situation, in terms of the majority of the
judgments, the appeal stands allowed and the impugned orders dated 09.08.2011 and
dated 12.08.2011 are set aside and quashed.
The respondents are directed to pass appropriate order granting second
extension to the appellant in terms of existing provisions. Such order shall be passed
within a period of 30 days from the date of receipt of this order.
MEMBER(A) MEMBER(J)